59 S.E. 856 (S.C. 1907), V.P. Randolph & Co. v. Walker

Citation:59 S.E. 856, 78 S.C. 157
Opinion Judge:WOODS, J.
Party Name:V. P. RANDOLPH & CO. v. WALKER.
Attorney:A. S. & W. D. Douglass, for appellant. Nelson & Nelson and Buchanan & Hanahan, for respondent.
Case Date:September 11, 1907
Court:Supreme Court of South Carolina
 
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Page 856

59 S.E. 856 (S.C. 1907)

78 S.C. 157

V. P. RANDOLPH & CO.

v.

WALKER.

Supreme Court of South Carolina

September 11, 1907

Appeal from Common Pleas Circuit Court of Fairfield County; Dantzler, Judge.

Action by V. P. Randolph & Co. against D. V. Walker. Judgment for plaintiff, and defendant appeals. Affirmed.

A. S. & W. D. Douglass, for appellant.

Nelson & Nelson and Buchanan & Hanahan, for respondent.

WOODS, J.

The complaint alleges plaintiff's deposit with defendant of the sum of $1,498.03 during the months of January, February, and March, 1905, defendant's agreement to hold the money as plaintiff's agent subject all times to his order, the tortious conversion of $1,076.03 by defendant to his own use, and his refusal to return to plaintiff the money so converted.

The first defense is a general denial. As

Page 857

a second defense, the defendant alleges the receipt by him of several different sums of money from the plaintiff between May 23, 1905, and June 14, 1905, disbursements by him at the direction of the plaintiff, leaving a balance in his hands on June 13, 1905, of $1,421.31, and notice to the plaintiff that on that day he had "retained and applied $1,076.03 thereof to amount due defendant by plaintiff on account of certain transactions and contracts by plaintiff for him, in buying and selling for future delivery cotton, corn, wheat, stocks and shares of stock, and other commodities and produce, said contracts having been made during the months of January, February and March, 1905, said amount of $1,076.03 having been paid by plaintiff or its duly authorized agent as margins to cover any loss that [78 S.C. 160] might be sustained by plaintiff in the buying and selling by plaintiff for defendant, and being without any intention on the part of either to make an actual delivery in kind, but being nothing more nor less than gambling on the future prices of said cotton, corn, wheat, stocks or shares of stocks, and other commodities and produce." The defendant further alleges payment to the plaintiff of $421.49, plaintiff's failure to respond to his notice of the appropriation of the remainder, $1,076.03, now claimed, or to make any demand on him until September 2, 1905, and he alleges the plaintiff is estopped from claiming the fund, because, relying upon plaintiff's acquiescence, he had used it as his own and for his own purposes. As the case turns upon a certain question of pleading involving the precise language of the counterclaim, it is necessary to set it out in full: "(1) That plaintiff being a corporation under the laws of the state of Pennsylvania, the defendant, at various times between 8th day of January, 1905, and the 14th day of March, 1905, delivered to and deposited sundry sums of money, aggregating $1,076.03, with one R. J. McCarley, one J. R. Thompson, and one J. Boyd Stevens, who did business in the town of Winnsboro, in the county and state aforesaid, at the times of such deposits, as the Winnsboro Cotton Exchange, commonly called a bucket shop, and were the duly authorized agents of plaintiff. (2) That said deposits or payments, aggregating $1,076.03, were made for the purpose of contracts with the plaintiff to buy and sell cotton, wheat, corn, stocks or shares of stocks, or other commodities and produce for future delivery, and the same was held by the plaintiff as margins to cover the loss that might be sustained in such buying and selling by plaintiff for defendant. That said contracts were made between plaintiff and defendant without any intention on the part of either [78 S.C. 161] that said...

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