Armour & Co v. Ross

• Decision Date: 18 September 1906
• Citation: 55 S.E. 315,75 S.C. 201
• Court: South Carolina Supreme Court
• Parties: ARMOUR & CO. v. ROSS.

55 S.E. 315

75 S.C. 201

ARMOUR & CO.

v.ROSS.

Supreme Court of South Carolina.

Sept. 18, 1906.

1. Trial—Odjections to Evidence.

An objection to evidence which assumes facts in dispute under the pleadings is properly overruled.

2. Appeal—Harmless Error.

Admission of irrelevant evidence which is not prejudicial is harmless error.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4153, 4154.]

3. Trial—Objections to Evidence.

An objection to evidence as irrelevant is properly overruled, where the objection failed to specify the ground thereof.

[Ed. Note.—For cases in point, see vol. 48, Cent. Dig. Trial, i 199.]

4. Principal and Aoent — Unauthorized Sale op Principal's Property.

Under Civ. Code 1902, § 2055, an agreement to sell goods for another as agent, title to remain in the principal until sold, must be recorded in order to be valid against subsequent purchasers.

5. Trial—Conflicting Instructions.

An instruction that if plaintiff delivered certain property to an agent, reserving an interest, and failed to have the written contract to that effect recorded, such agreement would be void as against subsequent creditors of the agent for value and without notice, is not in conflict with an instruction that, if the plaintiff shipped the goods to his agent as consignee, then nothing that he could say or do would enable defendant to take a good title to the property against plaintiff, if the property was taken for an antecedent debt.

6. Chattel Mortgaoes—Property Covered.

A chattel mortgage of all household goods, all office furniture, and all stock of merchandise does not cover merchandise thereafter acquired.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, §§ 208, 209.]

Appeal from Common Pleas Circuit Court of Cherokee County; Klugh, Judge.

Action by Armour & Co. against M. L. Ross and others. Verdict for defendants, and plaintiff appeals. Reversed and remanded.

J. O. Jeffries, for appellant.

Butler & Osborne, for respondent.

GARY, A J. This Is an action to recover the value of goods alleged to have been converted by the defendants to their own use. The complaint alleges that at the time hereinafter mentioned the plaintiff was the owner of a quantity of bacon and lard, of the value of $1,353.41; that at said time the property was in possession of the defendant St John Butler as plaintiff's agent, and was In his hands upon consignment; that on or about the 20th of August, 1901, the defendants, knowing that the plaintiff was owner of said property, and In order to pay an old debt due from the defendant St. John Butler to his codefendants, H. L. Ross and W. A. Turner, unlawfully and wrongfully converted the same to their own use, and placed it out of the possession of said agent, who thereupon left the state; and that the defendants Ross and Turner detained and concealed said property from the plaintiff for the purpose of appropriating it to their own use. The defendants Ross and Turner denied the allegations of the complaint, and set up as a defense that they were purchasers for valuable consideration without notice. The jury rendered a verdict in favor of the defendants, and the plaintiff appealed.

1. The first assignment of error is because his honor, the presiding judge, permitted the defendants to introduce in evidence a mortgage purporting on its face to have been executed by St. John Butler in favor of the defendant Ross on the 7th of February, 1901, covering all his household and office furniture, and stock of merchandise, to secure the payment of a note in the sum of $535, payable 60 days after date. The ground of objection was that Ross "had no right to take a mortgage given by the agent of Armour & Co. over the property of Armour & Co." The objection was properly overruled, because it assumed facts that were in dispute under the pleadings.

2. The testimony, however, was admissible on the ground that the mortgage formed a part of the transaction, upon which the defendants relied to sustain their plea of purchaser for value without notice. But, in any event, even if the testimony was irrelevant, it was not prejudicial.

3. All the other exceptions relative to the introduction of testimony must likewise be overruled, for the reason that the appellant either objected on the ground of irrelevancy, or failed to specify the ground of objection. Permitting the introduction of irrelevant testimony cannot be successfully assigned as error, unless there was an abuse of discretion on the part of the presiding judge, which was not made to appear in this case. The seventh exception was not argued by the appellant, and the court deems it only necessary to state that it cannot be sustained.

4. The eighth exception is as follows: "Because his honor erred in charging the jury as follows: 'If you should find from the evidence in this case that this property was consigned to St John Butler upon some secret trust or arrangement between himself and these plaintiffs, and that defendants had no knowledge of it, and did not know of facts, or had no notice of facts, sufficient to put them on inquiry about it, which inquiry would lead to discovery of the fact that Butler was not the owner of the property, but simply agent of the plaintiff, if that is established by the evidence, then that would not entitle plaintiff to recover'—the error complained of being (a) that this charge was not responsive to any of the evidence in the case; (b) that St, John Butler was the mere consignee of the plaintiff, and committed a breach of trust of their property, and it did not make any difference whether defendants knew of such contract or not, whether they took the property in good faith or not, still plaintiff would not be prevented from recovering its property or the value thereof, which had been disposed of by its agent, by such breach of trust." Assignment of error "(a)" cannot be sustained, as the charge was responsive to the issues made by the pleadings. Assignment of error "(b)" must, also, be overruled for the following reasons: The plaintiff introduced in evidence an instrument of writing dated June, 1889, directed to St. John Butler, signed by Armour & Co., and containing, among others, the following provisions: "Upon your acceptance in writing indorsed hereon, you are constituted our broker and commission merchant at Gaffney, S. C, to sell provisions and products, as we may offer through or consign to you, or to your care for that purpose, upon the following conditions: 1. The title of all goods is to remain in us until sold by you, in accordance with the terms fixed by us, and when sold, the proceeds of sale shall at all times be the property of Armour & Co., and you shall any time deliver any or all unsold goods to whomsoever Armour & Co. may authorize to receive them." St John Butler accepted the terms of the proposed contract. Section 2655 of the Code of Laws of 1902 is as follows: "Every agreement between the vendor and vendee, bailor or bailee of personal property, whereof the vendor or bailor shall reserve to himself any interest in the same, shall be null and void as to subsequent creditors or purchasers for valuable consideration without notice, unless the same be reduced to writing in the manner now provided by law, for the recording of mortgages; but nothing herein contained shall apply to livery stable keepers, inn keepers, or any other persons letting or hiring property for a temporary use, or depositing such property for the purpose of having...