C.B. Crosland Co. v. Pearson

• Decision Date: 14 July 1910
• Citation: 68 S.E. 625,86 S.C. 313
• Parties: C. B. CROSLAND CO. v. PEARSON.
• Court: South Carolina Supreme Court

68 S.E. 625

86 S.C. 313

C. B. CROSLAND CO. v. PEARSON.

Supreme Court of South Carolina

July 14, 1910

Appeal from Common Pleas Circuit Court of Marlboro County; Geo. W Gage, Judge.

Action by the C. B. Crosland Company against Rachel E. Pearson. From a judgment for plaintiff, defendant appeals. Affirmed.

Newton & Owens, for appellant. Townsend & Rogers, for respondent.

GARY A. J.

This is an action upon an account, for goods sold and delivered by the plaintiff to the defendant. The jury rendered a verdict in favor of the plaintiff for $395.40, which was afterwards reduced to $387.65, and the defendant appealed.

The first exception assigns error on the part of his honor, the presiding judge, in charging the jury that "there is only one pivotal issue in this case before you, and that is Who made this contract, to whom did Crosland intend to sell the goods, and who intended to buy them," on the ground that the charge was in violation of article 5, § 26 of the Constitution, which provides that "judges shall not charge juries, in respect to matters of fact, but shall declare the law."

It is not a charge on the facts to state the issues raised by the pleadings. Miles v. Tel. Co., 55 S.C. 403, 33 S.E 493. If the presiding judge states the issues erroneously, it is the duty of counsel to call his attention to such error; otherwise he waives the right to make it the basis of an exception on an appeal to the Supreme Court. State v. Still, 68 S.C. 37, 46 S.E. 524, 102 Am. St. Rep. 657.

The second exception is as follows: "Because his honor erred in charging the jury, 'It is a matter of no consequence as to how they were charged on these daybooks,' error being that this was a charge upon facts, and further error that this took from the jury the right to consider the original entry; the evidence being the charge that was made in the books referred to." The words of his honor, the presiding judge, set out in this exception, are only part of a sentence. His charge in this respect, was as follows: " If Mrs. Pearson went to the store and got the goods, and if her daughters went there and got the goods, and the intention and agreement was that she should be liable for the goods, it is a matter of no consequence as to how they were charged on these daybooks. You may look at these books, to throw light upon the transaction, but if the agreement between the parties, to wit, Mrs. Pearson and Crosland, was that she was to get the goods, and she was to be liable for the goods, and Crosland sold them upon that agreement, why these entries in the daybooks are not conclusive." His honor simply meant to charge the jury, that it was immaterial to whom the goods were charged on the daybooks, if there was an agreement between the plaintiff and the defendant that she was to be liable for them. An account may be proved not only by the book of original entry, but also by the personal knowledge of a witness, or the admissions of the debtor. Walker v. Laney, 27 S.C. 150, 3 S.E. 63. The ruling of the presiding judge is sustained by the case of Lorick v. Caldwell, 85 S.C. 94, 67 S.E. 143.

The third exception is as fellows: "Because the verdict is not in accordance with the proven facts in this case particularly there was no sufficient proof, nor any proof, for the items of balance of account for 1966, in the sum of $14.66, which item was necessarily included, and made a part of the verdict of $395.40." It is only necessary to refer to the following testimony of Frank Crosland to show that this exception cannot be sustained: "Q. When the settlement was due in 1906, was any objection made by her or any one in her behalf? A. No, sir; never since we have done business with her. Q. How much balance was left from the 1906 account? A. Fourteen dollars and something Q. Does your book show it? A. Yes, sir. The Court: Was the balance struck, and after it was struck did she admit that it was due? A. Yes, sir. Q. How much was that balance? A. Fourteen...