Co-Operative Pub. Co. v. Walker

• Decision Date: 24 July 1901
• Citation: 39 S.E. 525,61 S.C. 315
• Parties: CO-OPERATIVE PUB. CO. v. WALKER et al.
• Court: South Carolina Supreme Court

39 S.E. 525

61 S.C. 315

CO-OPERATIVE PUB. CO. v. WALKER et al.

Supreme Court of South Carolina

July 24, 1901

Appeal from common pleas circuit court of Barnwell county; Gage Judge.

Action by the Co-operative Publishing Company against W. E. Walker and J. P. Walker. Judgment for defendants on counterclaim and plaintiff appeals. Affirmed.

J. O Patterson, for appellant.

J. J Brown, for respondents.

POPE J.

The following is the statement in "case" for appeal "This is an action on account, and was commenced by the service of the summons and complaint on the 21st day of December, A. D. 1899. The defendants answered, and the cause was tried before his honor Judge G. W. Gage and a jury at the March term, A. D. 1900, for Barnwell county. The plaintiff at the trial demurred to the defendant's counterclaim, and the said demurrer was overruled, and the cause ordered on to trial. The jury returned a verdict for defendant for the sum of $100, upon which judgment was entered. The plaintiff moved for a new trial, which was refused." This appeal was then taken. The sole questions raised by the appeal relate to the alleged error of the circuit judge in overruling the demurrer as to the alleged counterclaim set up by the defendant, and this alleged error is made the basis for the motion for a new trial after verdict for the defendant. Under these circumstances, we have deemed it best, in order that the pleadings may be considered with reference to defendant's counterclaim, to set out both the complaint and the answer. The complaint reads as follows: "The complaint of the above-named plaintiff respectfully shows unto the court: (1) That the plaintiff, the Co-operative Publishing Company, is a corporation duly organized and created under the laws of the state of Nebraska, and was such corporation at the times hereinafter mentioned. (2) That the defendant W. E. Walker became indebted to the plaintiff in the sum of $72.99 for goods and merchandise sold and delivered to the defendant on the 21st day of April, A. D. 1898, and divers other days thereafter up to and including the 4th day of October, A. D. 1898, an itemized statement of which is hereto attached; that said goods and merchandise were sold and delivered to the defendant as above stated at his request, and for which he promised to pay. (3) That no part of said indebtedness has been paid, except the sum of $40.05, as appears by the account hereto attached, and that said defendant is now justly due and owing to the plaintiff the sum of $132.94, with interest from the 1st day of January, A. D. 1899. (4) That the defendant J. P. Walker did on the 6th day of September, A. D. 1898, agree in writing to become responsible to plaintiff for the payment of all bills of goods ordered by the said W. E. Walker from the plaintiff, and that the said goods and merchandise sold and delivered to the defendant W. E. Walker as above stated, and for which the defendant is now due to the plaintiff the said sum of $132.94, were sold and delivered to said defendant under the agreement of the said defendants J. P. Walker, and plaintiff relied upon the surety of the said J. P. Walker, and the statements in the said written guaranty of the said J. P. Walker, surety, a copy of which is hereunto appended. Whereupon plaintiff prays for judgment against the defendants for the sum of $132.94, and for the costs of this action." The answer was as follows: "The defendant W. E. Walker, answering the complaint herein, for a first defense: (1) Denies each and every allegation in said complaint contained. For a second defense: That on the 2d February, 1898, the plaintiff company, after many urgent requests, induced the defendant to enter into an agreement whereby the defendant was to become the agent of the said plaintiff company for the sale of certain books therein named, the said books being furnished the defendant by plaintiff company at a discount of fifty per cent.; and this defendant agreed to devote eight hours per day during the period mentioned in said agreement to the work of selling said books, making reports of sales, remitting money, and many other conditions and stipulations set forth in said agreement, a copy of which is hereto attached, and made part and parcel of this answer. (2) The defendant admits that he received books from plaintiff company amounting in value to $172.99, as stated in said complaint. That immediately upon receiving said books he began the work of daily canvassing and soliciting orders, devoting not only eight hours per day, but frequently much more time, to the work, sometimes working at night and sometimes on Sunday. That he succeeded in selling sufficient books to amount to...