85 S.E. 52 (S.C. 1915), 9077, Moore v. Marion Cotton Oil Co.

Docket Nº:9077.
Citation:85 S.E. 52, 100 S.C. 499
Opinion Judge:FRASER, J.
Party Name:MOORE ET AL. v. MARION COTTON OIL CO.
Attorney:A. F. Woods, of Marion, for appellant. M. C. Woods, of Marion, for respondents.
Case Date:April 21, 1915
Court:Supreme Court of South Carolina
 
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Page 52

85 S.E. 52 (S.C. 1915)

100 S.C. 499

MOORE ET AL.

v.

MARION COTTON OIL CO.

No. 9077.

Supreme Court of South Carolina

April 21, 1915

Appeal from Common Pleas Circuit Court of Marion County; C.J. Ramage, Special Judge.

Action by J. W. Moore and R. S. Moore, partners under the firm name and style of J. W. & R. S. Moore, against the Marion Cotton Oil Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

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The contract, evidence, and the instruction on readiness to perform were as follows:

Contract (Exhibit A).

This agreement made and executed, in duplicate, this 10th day of August, 1910, by and between Marion Cotton Oil Company, Marion, S. C., party of the first part, and J. W. & R. S. Moore, of Fork, S. C., party of the second part, Witness:

First. That party of the second part is to buy seed for the account of the party of the first part at Fork and Squire's Siding, and for no one else, during the season of 1910-11, or for a period of six months; that is, from September 1st, 1910, to March 1st, 1911, and is to pay such a price for them as he is instructed by party of the first part.

Second. That party of the second part is to use his time and influence towards promoting the interest of the party of the first part, both in the purchase of seed and the sale of products for their account, and in every other way possible.

Third. That any and all money advanced party of the second part by party of the first part is to be considered as trust money, to be used only in the purchase of seed, and is to remain the property of the party of the first part until so used.

Fourth. That party of the second part is to keep a correct record of all money paid for seed and is to make a daily report, showing seed bought and amount paid for them, also a report of receipts from products sold.

Fifth. That it is further agreed that party of the second part is to ship to party of the first part such of his own seed as he may sell at the market price.

For and in consideration of above services, the Marion Cotton Oil Company, party of the first part, agrees to pay J. W. & R. S. Moore, of Fork, S. C., party of the second part, a salary of $100.00 per month, same to be paid at the last of each month.

Party of the first part also agrees to bear all expenses of draying and hauling seed from the place of party of the second part to cars in which they are loaded. They also agree to bear any other expenses incident to the business.

In witness whereof, the said parties above named have duly signed and sealed these presents, in duplicate, on the day and year first above written.

Marion Cotton Oil Company,

By Eugene C. Culvern, Mgr.

J. W. & R. S. Moore,

Per R. S. Moore.

Witness: L. H. Little.

R. S. Moore testified:

Direct examination, by Mr. M. C. Woods:

Q. Mr. Moore, are you one of the plaintiffs in this case? A. Yes, sir. Q. On or about the 10th of August, 1910, did your firm enter into a contract with Marion Cotton Oil Company? A. Yes, sir. Q. Is this the contract (showing paper to witness)? A. Yes, sir.

Plaintiff introduced the following contract (appended hereto as Exhibit A):

Q. Mr. Moore, in pursuance of this contract, did you buy seed for Marion Cotton Oil Company at Fork and Squire's Siding during the season of 1910 and 1911? A. Yes, sir. Q. At such prices as you were given? A. Yes, sir. Q. Did you use your time and influence in promoting the interest of the oil mill to as great an extent as you could? A. Yes, sir. Q. Did you account for all money that you received for the purchase of seed? A. I didn't call for any money until I had made a shipment. I furnished my own money to buy the seed, and, when I would have two or three or four hundred dollars in them, I would write them to send me a check, and they sent me a check. Q. You would apply it on the seed? A. Yes, sir. Q. Did you keep records of your purchases and make reports to them regularly? A. Yes. Q. Did you ship to the Marion Cotton Oil Company your own seed? A. No, sir. Q. Why not? A. Because they wouldn't pay me the market price.

Defendant's counsel objects to the witness stating that the oil mill did not pay the market price. The market price is one of the elements that is to be proved, and the jury is to decide what was the market price.

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The Court: I think he can state that they wouldn't pay him the market price.

Mr. A. F. Woods: That is one of the elements that is to be proved; that is one of the points in contest, as to what was the market price. He can state what prices he was paying and what prices other people were paying, but the inference to be drawn as to what was the market price is an inference to be drawn by the jury and not the witness.

The Court: I think the question is competent.

(Exception noted by defendant.)

Q. Did you have many seed? A. Yes; I had a good many seed. Q. When did you get ready to sell your seed? A. Some time in the latter part of January. Q. When you got ready to sell them, what did you do? A. I tried at different places to see what I could get for them, and when I got the best prices I could get, then I called up the Marion Oil Mill and asked them (interrupted)-- Q. Where all did you inquire as to the market price? A. I tried Lumberton, Maxton, Dillon, Dunbar, Mullins, and Marion. Q. Did you ascertain what seed were bringing at that time? A. Yes. Q. What was the result of your inquiry as to what they were bringing at that time? A. Anywhere from 50 to 53 cents.

Mr. A. F. Woods: Does your honor understand that I object to that testimony on the ground that it is purely hearsay?

The Court: You can test him on cross-examination. You object to all this testimony?

Mr. A. F. Woods: Yes, sir.

The Court: In my judgment it is competent.

(Objection overruled; exception noted.)

Q. Mr. Moore, when you ascertained the price seed was bringing, what did you do, if anything? A. I offered them to the Marion Cotton Oil Mill at the best price I was offered for them, both over the phone and by letter. Q. With whom did you have this conversation over phone? A. Mr. Culvern. Q. What position did Mr. Culvern hold; what connection did he have with Marion Cotton Oil Company? A. He was manager. Q. State what occurred in that conversation between you and Mr. Culvern? A. He stated that he was loaded on cotton seed--on high-priced cotton seed, I believe he put it--and he didn't want any more at those prices, and, if I could get that price for them, to go ahead and sell; that it would be perfectly all right with him. Q. Did he offer you any price for your seed? A. Yes; he offered me 45 cents. Q. What did you tell him in reference to that? A. I told him what seed was bringing at other places and what I thought I could get for them. Q. He said he didn't want them at that price? A. He said he didn't want them at that price; that he had a lot of high-priced seed, heating up on him, and he didn't want any more right then. Q. Did you express a willingness to sell to him at the market price? A. Yes; he said he didn't want them; he had plenty of them, more than he could attend to at that time, and, if I could get that price for them, to go ahead and sell them; that it was all right with him. Q. How much salary were they to pay you for the season of 1910-11? A. $600. Q. How much did they pay you? A. $200. Q. How much balance do they owe you? A. $400. Q. Have you or not demanded that balance? A. Yes, sir. Q. Did they pay you, or did they refuse to pay you? A. They refused to pay me.

Cross-examination:

Q. Mr. Moore, Mr. Culvern said he was loaded up with seed and didn't want any more seed because they were heating on him? A. Yes, sir. Q. Have you ever head of seed heating the latter part of January? A. Yes, sir. Q. Where did you every hear that; what mill? A. I have heard of it in several mills. I have heard them say so. I was not in the mill business, but I have had some of my own seed to heat about that time. Q. Don't you know the seed will heat in the fall months, but never heat as late as January 1st? A. No, sir; I don't know it. Q. The kind of seed you raise will heat right on up to the 1st of February? A. Yes; they will heat if you put too many together, and if you gin a pile of cotton for somebody that is damp and the seed is damp. Q. The seed you plant will heat up to the 1st of February? A. They will if you get them wet or put wet seed in with dry seed. Q. Was not the whole trouble between you and the oil mill that they wouldn't sell you meal? A. No, sir. Q. You didn't try to buy meal from them and they told you they couldn't supply you? A. No, sir. I tried to buy meal from them, but they didn't tell me they couldn't supply me. They simply asked me a dollar a ton more for it than I could buy it elsewhere. Q. Wasn't this whole difficulty because you wanted to sell your seed to somebody else to get your meal? A. No, sir. Q. That was not so? A. No, sir. Q. Did you or not tell Mr. D. E. Godbold at your store in Fork, during the month of November, about the middle of November, 1910, that unless the Marion Cotton Oil Mill would pay you more for your seed than anybody else that they were not going to get them because you had to use your seed to get meal with? A. No, sir; and Mr. Godbold can't tell me that I did. Q. You didn't say that? A. No, sir; and he knows I didn't. Q. Any time during that fall? A. No, sir; no time. Q. You didn't tell him that at any time? A. No, sir. Q. The trouble between you and the oil mill was not simply this: That you had neglected to provide for your meal and you wanted to sell your seed to some other mill to obtain meal? A. No, sir. Q. Wasn't that...

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