Burns v. Goddard

• Decision Date: 07 October 1905
• Parties: BURNS. v. GODDARD.
• Court: South Carolina Supreme Court

72 S.C. 355

51 S.E. 915

BURNS.

v.GODDARD.

Supreme Court of South Carolina.

Oct. 7, 1905.

1. Bills and Notes—Action—Evidence.

Where an action on a note was in the name of the payee against the maker alone, that there was an indorsement on the note in the name of the payee was immaterial.

2. Evidence—Similar Transactions.

In an action on a note by the payee against the maker, a question asked plaintiff as to whether his agreement with defendant was different from the usual agreement in similar cases was properly excluded.

3. Sale—Delivery—Instructions.

In an action on a note given for the price of a machine which did not arrive until after the maturity of the note, an instruction that delivery to the carrier, in the absence of any agreement as to place of delivery, is delivery to the purchaser, but that the jury should consider, not only the place of the contract, but all of the circumstances, in determining whether the property was to be delivered at the home of the buyer, or only to the carrier, was proper.

4. Trial—Instructions—Burden of Proof.

An instruction that, when a party sets up an affirmative defense, the burden is on him to prove it, is not objectionable, in that the jury could infer that the burden of proof meant only the duty of making a prima facie case, whereas his defense should be established by a preponderance of evidence.

5. Evidence—Parol.

Where a written contract as to a machine was a lease under seal and a note not under seal, failure to deliver the machine at a specified time and place for a specified purpose under an oral agreement may be proved by parol, on issue of failure of consideration of the note.

6. Appeal—Harmless Error.

An instruction not based on the evidence is not ground for reversal, when no prejudice is shown.

Appeal from Common Pleas Circuit Court of Greenville County; Townsend, Judge.

Action by S. A. Burns against J. W. Goddard. Judgment for defendant, and plaintiff appeals. Affirmed.

B. F. Martin, for appellant.

McCullough & McSwain, for respondent.

JONES, J. In this case the payee sues the maker upon a promissory note for $175, dated December 19, 1902, and due April 1, 1903. The answer alleged as defenses a total failure of consideration and that the note was obtained by false and fraudulent representations. The note in question was part of a transaction between the parties, in which Burns executed to Goddard an instrument granting the exclusive right to use and sublease to others the right to use the Shannon Axle Cutter from December 19. 1902, to April 4, 1906, in the county of Greenville, S. C, and as a part of said transaction Burns agreed to deliver to Goddard at Greenville, S. C., one of said machines within two or three weeks from December 19. 1902. There was testimony that it was understood that Burns would canvass Greenville county between the making and maturity of the note for the purpose of subleasing rights to use said machine as a means of paying the note, and in order to make such canvass it was necessary for Goddard to have such a machine for exhibition. The machine did not arrive in Greenville until after the maturity of the note, when Burns declined to receive it and also refused to pay the note. The jury rendered a verdict for the defendant, and the plaintiff appeals from judgment thereon.

1. The fifth and sixth exceptions relate to the rulings of the court as to the admissibility of testimony. The plaintiff was asked the question, "What is that indorsement, 'S. A. Burns, ' on the back of the note?" which the court excluded as irrelevant. This ruling was correct. The action was in the name of the payee against the maker alone, and the indorsement was no part of plaintiff's case. It is argued, however, that it was admissible in anticipation of the issue of fraud raised by defendant's answer, and that it was a circumstance against the charge of fraud that, notwithstanding the note had been actually negotiated before maturity, so that the indorsee could have recovered as an innocent purchaser, yet Burns took up the note himself and made the fight to recover thereon. The court ruled in substance that such a circumstance had no probative value to show the motives or acts of plaintiff at the time of the transaction with defendant. In 14 Ency. of Law, 196, it is stated that the "conduct of a party charged with fraud, either before, at the time of, or after the transaction alleged to have been fraudulent, may be shown for the purpose of rebutting a presumption of fraud arising from the evidence, if it has any legitimate tendency in this direction." The testimony in question would have no legitimate tendency to rebut any presumption of fraud, if there was any arising from the testimony, because it was the duty of the plaintiff, on account of his liability as an indorser, to take up the note upon refusal of the maker to pay, whether the original transaction was fraudulent or not.

2. The court also excluded the answer of plaintiff to the question: "Was your agreement with Mr. Goddard in any way different from the usual agreement in those cases?" The witness answered, "Not at all, " which was stricken out as irrelevant. The ruling was not improper nor harmful. The question was as to the specific agreement between plaintiff and defendant, and it would have been too discursive to inquire as to the terms of agreements made by plaintiff with others.

3, 4. The fourth exception complains of the charge to the jury in relation to the question as to where the machine was to be delivered. The plaintiff requested the court to charge: "In the absence of any stipulation or agreement as to the place of delivery, the sale is complete upon delivery to a common carrier for...