Blakely & Copeland v. Frazier
| Decision Date | 21 November 1878 |
| Docket Number | CASE 645. |
| Citation | 11 S.C. 122 |
| Parties | BLAKELY & COPELAND v. WILLIAM H. FRAZIER AND WILLIAM A. SANDERS, AS EXECUTORS OF MARSHALL FRAZIER, DECEASED. |
| Court | South Carolina Supreme Court |
1. An action was instituted in 1871 in the county where plaintiffs lived; after the amendment to the code, adopted November 1873, and after answers pet in, an application was made by defendants to have place of trial changed to the county wherein they resided, and was refused, and defendants at the trial again objected to the venue and the objection was overruled. Held , that such rulings were denials of substantial rights material to the defence, secured by statute, and were erroneous.
2. From such denials an appeal will lie to this court.
3. Meaning of the phrases, involving the merits and affecting the judgment as used in Section 11 of the code and its amendments, discussed .
4. Irregularities in complying with an order of the Circuit Court allowing amendments to the pleadings, cannot be taken advantage of at the trial of the cause, nor be the subject of an appeal to this court.
5. Where a factor pays the amount of a reclamation made upon him for a balance due on the sales of cotton shipped through him on account of overdrafts by the owner of the cotton, the statute of limitations commences to run in favor of such owner, from the day of payment by the factor, and not from the sale of the cotton.
6. A factor who voluntarily pays the amount of a reclamation demanded of him by cotton-sellers in Liverpool, for balance due on account-sales for overdrafts, and sues to recover it from the owner of the cotton, assumes the burden of proving the accounts correct; the account-sales and the payment are not sufficient evidence of his right to recover.
7. It is not error to refuse to charge as to the sufficiency of evidence apart from its legal character and tendency.
8. An award which merely decides by which one of two persons an account is to be primarily paid, does not bind a party to the arbitration to the correctness of the items composing the account.
9. In an action brought by a factor against the executors of the owner of certain cotton, to recover the amount of a reclamation paid on account of such cotton, a witness through whom the factor shipped such cotton and paid the amount of such reclamation, may testify to conversations had between himself and such owner, now deceased.
10. But in such case the factor cannot testify to conversations had between himself and such deceased person.
11. In an action against the executors of A., the unpaid costs of a suit on the same cause of action against A., brought and discontinued during his lifetime, cannot be interposed as a defence.
Before COOKE, J., Richland, May, 1876.
This was an action brought by the plaintiffs against the executors of Marshall Frazier, deceased, to recover a certain amount of money paid by plaintiffs under the following circumstances:
In March, 1866, the house of Marshall, Beach & Co., of Charleston, received through Blakely & Copeland, of Columbia, two hundred and eleven bales of cotton, which belonged to Marshall Frazier, of Edgefield, Frazier, in person, delivering to Marshall, Beach & Co. the letter of advice written by Blakely & Copeland, which accompanied the shipment of the cotton. The cotton was sent by Marshall Beach & Co., to Beach, Root & Co., of Liverpool, and Frazier was given a letter of credit to Salomon, Root & Co., of New York, by which he drew from the New York house $20,000 as an advance upon this shipment. The Charleston, New York and Liverpool houses were composed of the same individuals as partners, and were identical in interest. A check on a New York bank, payable to Frazier and endorsed by him, was produced in court by E. W. Marshall, head of the Charleston house, having been accounted for by the Charleston firm in its settlements with the New York house, and received by Marshall, Beach & Co. from Salomon, Root & Co. in due course of business; and Frazier subsequently acknowledged to E. W. Marshall that he had received the money. According to the testimony of E. W. Marshall, it is the custom of merchants through whom produce is shipped, that advances go forward with the shipment as a charge thereon, and are paid from the sales of the produce. As soon as Salomon, Root & Co. advanced the $20,000 to Frazier, they wrote to Beach, Root & Co. informing them of the advance and sent the account forward, reducing it to pounds, shillings and pence, at the prices that day prevailing in New York for sterling exchange on Liverpool. According to account-sales rendered by Beach, Root & Co. it appeared that this draft was paid May 1st, 1866, it being £ 4186 5s. 6d.
In May and June, 1866, this cotton was sold in Liverpool and fell short of paying charges and advances by £ 778 11s. 4d. This amount was paid by Marshall, Beach & Co., and its repayment demanded by them of Blakely & Copeland; afterwards at B. & C.'s request, demand was made upon Marshall Frazier for this amount. Frazier thought Blakely & Copeland were primarily liable. The question, who was primarily liable to Marshall, Beach & Co.- Blakely & Copeland or Frazier-was submitted to Gov. F. W. Pickens, selected by Frazier, and Wm. M. Martin, selected by Marshall, Beach & Co., who awarded as follows:
" We, the undersigned, agree and decide that the said Blakely & Copeland were factors of the said cotton, and in the first instance directly responsible for all said reclamation." Signed by the arbitrators and dated November 19th, 1866.
On December 10th, following, Blakely & Copeland paid to Marshall, Beach & Co. £ 778 11s. 4d. " at the current rate of exchange this day, say $6.70 per pound sterling, making the sum of $5216.40 United States currency," balance due on account of the shipment of cotton made by M. Frazier.
To recover this amount, Blakely & Copeland brought their action against Marshall Frazier, in Edgefield district, February 16th, 1867, and the same on motion of plaintiffs' attorneys was ordered by Judge Melton to be discontinued and plaintiffs pay the costs, July 18th, 1870. In August of the same year, Marshall Frazier died. Another suit on same cause of action by same plaintiffs against W. H. Frazier, executor of M. Frazier, was instituted in Richland county, in August, 1871. W. H. Frazier, in his answer, objected that Wm. A. Sanders, his co-executor, had not been made a party. On March 2d, 1872, Judge Melton " Ordered, that the plaintiffs have leave to amend their summons and complaint in this action by adding the name of William A. Sanders, one of the executors of Marshall Frazier, deceased, as a defendant in this action." Another order to same effect was passed by Judge Carpenter, October 25th, 1873, which reads as follows:
1. That the above case be withdrawn from the jury, and that the same be continued.
2. That the plaintiffs have leave to amend their complaint within thirty days by making as a party defendant, William A. Sanders, as co-executor of Wm. H. Frazier, of the last will and testament of Marshall Frazier, with apt words to charge him.
Summons under this order was dated November 19th, 1873; entered in the sheriff's office at Edgefield, January 7th, 1874; served, together with amended complaint, on Sanders, January 14th; entered in the sheriff's office at Greenville, March 24th, and served together with amended complaint on W. H. Frazier, March 27th. Amended complaint was filed in the clerk's office in Columbia, November 22d, 1873.
The defendants denied any liability for the money claimed; denied that the payment was made at request of M. Frazier; denied overdraft on cotton; plead statute of limitations; that the amended complaint and summons had not been served, or attempted to be served, within thirty days, as required by the order; and that the costs in the action brought against their testator in Edgefield had not been paid.
At May Term, 1875, of the court for Richland, it was objected to the jurisdiction of the court that the action was properly triable only in Edgefield county, and the court was requested so to order. Judge Carpenter refused, and the defendants excepted. At the trial of the cause in May, 1876, the same objection and request was made, and Judge Cooke overruled the objection and refused the request, and the defendants excepted.
At the trial objection was made by defendants to testimony by E. W. Marshall, of Marshall, Beach & Co., and by J. M. Blakely, one of the plaintiffs, as to conversations relating to the matters at issue had by such witnesses with Marshall Frazier, during his lifetime; they were admitted and defendants excepted.
The complaint alleged that plaintiffs were partners when payment of the reclamation was made in December, 1866; a witness testified that the firm was dissolved in December, 1866.
According to one of the witnesses, " Reclamation is, where there is a deficiency, as in this case, the claim made for a payment of such deficiency."
No proof was offered of the correctness of the accounts rendered by Beach, Root & Co., of the sales of the cotton: but such account sales, received by Marshall, Beach & Co. from Beach, Root & Co., were put in evidence.
At the trial the defendants made the following requests for rulings and charges:
The defendants requested the court to rule that this action could not be maintained, because the costs of the former suit of the same plaintiffs against Marshall Frazier had not been paid when this action was commenced against William H Frazier, executor, and were not paid until long after the said William H. Frazier, executor, had answered plaintiffs' complaint, setting up this, among other grounds of defence. The court refused to rule as requested; whereupon defendan...
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