Fairly v. Wappoo Mills

• Decision Date: 30 May 1895
• Parties: FAIRLY v. WAPPOO MILLS.
• Court: South Carolina Supreme Court

22 S.E. 108

44 S.C. 227

FAIRLY v. WAPPOO MILLS.

Supreme Court of South Carolina

May 30, 1895

Appeal from common pleas circuit court of Berkeley county; D. A Townsend, Judge.

Action by John S. Fairly against the Wappoo Mills. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff filed the following complaint: "First. That the plaintiff is a broker in the city of Charleston, state of South Carolina, carrying on a brokerage business in fertilizers phosphate rock, and similar products, and was so at the times hereinafter mentioned, and that the defendant, Wappoo Mills was at the times hereinafter mentioned, and now is, a corporation created by and under the laws of the state of South Carolina, and having its principal office and place of business in the county of Berkeley. Second. That the plaintiff, as such broker, sold for account of said defendant, on June 5, 1890, 2,000 tons dissolved bone to the Caddo Fertilizer Company, the brokerage on which, at the accustomed rate agreed upon, was $200, and was to be paid by the defendant. That the plaintiff has received from the defendant sixty-eight dollars on account of said brokerage but the balance of $132 is still due and unpaid, although demanded of the defendant. All of which will more fully appear on reference to the broker's memorandum of sale bill, and account heretofore rendered defendant, and copies of which are hereto annexed, as Exhibits A, B, C, and made part of this complaint. Wherefore, the plaintiff demands judgment against the defendant in the sum of $132 and costs."

Exhibit A, referred to in the complaint, is as follows: "Exhibit A. (Copy.) Charleston, S. C., June 5th, 1890. Sold for account of Wappoo Mills, of Charleston, S. C., to the Caddo Fertilizer Co., of Shreveport, La., (2,000) two thousand tons dissolved bone, guarantied minimum analysis (13 1/2 thirteen and one-half per centum available phosphoric acid, in bulk, f. o. b. cars here, at ($9.85) nine and 85/100 dollars per ton of 2,000 lbs. Terms: Sight draft against B/L. Shipments: Four hundred tons per month during September, October, November, and December, 1890, and January, 1891. Seller paying brokerage at 10 cents per ton. Accepted (Fire, storm, and other unforeseen events excepted). Wappoo Mills, C. C. Pinckney, Jr., Pres't. Accepted. Caddo Fertilizer Co."

The defendant, the Wappoo Mills, answering the complaint, for a first defense, says: "(1) That it admits the allegations made in the first paragraph of the complaint herein. (2) That it denies each and every allegation of the second paragraph, except as is specifically admitted in this paragraph. (3) This defendant admits that the contract of sale attached to the complaint as Exhibit A, and made a part thereof, was brought about by the plaintiff; but this defendant alleges that there existed at the date thereof a custom in this business to pay brokerage or commission only on the amount of stuff actually sold and delivered under such contract. For a second defense, this defendant alleges: (1) That some time in the early part of the year 1890 the plaintiff, representing the Caddo Fertilizer Company, offered to purchase from the defendant, for said company, 2,000 tons of dissolved bone. That the defendant agreed to sell the said 2,000 tons dissolved bone to the Caddo Fertilizer Company upon the following terms, and no other, that is to say, for the price of $9.85 per ton of 2,000 lbs., f. o. b. cars Charleston; terms, sight draft against bill of lading; shipments, 400 tons per month during September, October, November, and December, 1890, and January, 1891; seller paying brokerage at 10c. per ton; fire, storm, and other unforeseen events excepted. (2) That about the time designated for the first shipment of 400 tons of dissolved bone the plaintiff, still representing the Caddo Fertilizer Company, requested the defendant not to ship the said 400 tons, which, according to the terms of sale, ought to have been shipped at that time. (3) That about the time designated for the second shipment of 400 tons the plaintiff, still representing the Caddo Fertilizer Company, requested the defendant not to ship said 400 tons, which ought to have been shipped at that time. (4) That about the time designated for the third shipment of 400 tons, viz. some time in November, 1890, the plaintiff, still representing the Caddo Fertilizer Company, requested the defendant to ship to the Caddo Fertilizer Company a cargo of dissolved bone, by vessel, for the price of $9.50 per ton f. o. b. vessel. That the defendant shipped by vessel 684.21 tons dissolved bone to said company, drawing upon them, at the request of the plaintiff, at thirty days, for the purchase money for same. (5) That when the said draft became due and payable the plaintiff, still representing the Caddo Fertilizer Company, urged the defendant to renew and extend the said draft for sixty days longer, for the reason that the Caddo Fertilizer Company were not able to pay the first draft at that time. That this defendant, having negotiated said first draft, was compelled to take up same, and accept the note of the Caddo Fertilizer Company, payable at sixty days. (6) That shortly after the failure of the Caddo Fertilizer Company to pay the said first draft the plaintiff, still representing the said Caddo Fertilizer Company, requested the defendant to send another shipment of dissolved bone to said company, but this defendant, considering the said agreement of sale broken, by reason of the several breaches herein above mentioned, refused to make the desired shipment. (7) This defendant therefore alleges that the entire amount of dissolved bone sold by it to the Caddo Fertilizer Company, as above set forth, is 684.21 tons, and admits that the plaintiff herein became entitled to a brokerage thereon of $68.43. But this defendant further alleges that of this brokerage the sum of sixty-eight dollars have already been paid to the said plaintiff, at his request, and that there remains due to the said plaintiff on the said transaction the sum of forty-three cents, which said sum of forty-three cents this defendant has always been willing, and is now willing, to pay. For a third defense to the alleged cause of action, this defendant alleges: (1) That in pursuance of the power in them vested by an act of the general assembly passed December 17, 1881, and entitled 'An act to authorize the city council of Charleston, to impose a license tax on all persons engaged in any business, trade or profession, in the city of Charleston,' the city council of Charleston on the 23d day of December, A. D. 1889, enacted a law entitled 'An ordinance to regulate licenses for the year 1890,' requiring all persons, firms, or corporations engaged in, or intending to engage in, any trade, business, or profession therein mentioned to obtain before January 20, 1890, a license therefor, and imposing a penalty for each offense on those who should carry on such business, trade, or profession without first taking out the required license. (2) That the plaintiff herein, the said John S. Fairly, failed to obtain during the year 1890 the proper license prescribed by said ordinance for the business conducted by him."

The following extracts from the ordinance referred to in the third defense of the answer are sufficient for an understanding of the opinion:

"An ordinance to regulate licenses for the year 1890.

"Section 1. Be it ordained by the mayor and aldermen of the city of Charleston, in city council assembled: That every person, firm, company or corporation engaged in, or intending to engage in, any trade, business or profession hereinafter mentioned, shall obtain on or before the 20th day of January, A. D. 1890, a license therefor, in the manner hereinafter prescribed. Every person, firm, company or corporation commencing business after the said 20th day of January, A. D. 1890, shall obtain a license therefor before entering upon such trade, business or profession.

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"Sec. 3. If any person or persons shall exercise or carry on any trade, business or profession, for the exercising, carrying on or doing of which a license is required by this ordinance, without taking out such license as in that behalf required, he, she or they shall, for each and every offense, be subject to a penalty not exceeding $100, as may be adjudged by the recorder or court trying the case. And the same shall be entered up as a judgment of the court, and execution shall issue against the property of the defendants as for the collection of other taxes and penalties.

"Sec. 4. *** It shall be the duty of the city sheriff, the police and his deputies, to detect and report all parties failing to take out a license as herein required. They shall visit each and every place of business after the 20th day of January, 1890, and ascertain and report at the following regular meetings of council the names and places of business of all persons failing to take out a license.

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"Sec. 7. All licenses granted under this ordinance shall continue in force until the 31st day of December, A. D. 1890. No license except such as is provided for by limitation, per diem or month, or by amount of sales, shall be issued for less time or rate than one year. The city treasurer shall prepare a proper form to be issued in each case.

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"Sec. 13. That the charge for license for any business, trade or profession not enumerated above shall be determined on by the committee on ways and means and the city treasurer conjointly.

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"Class 5.

1. Brokers, pawn, each $300 00

2. Brokers, stock and other personal property and real estate at private

sale, each 75 00

3. Brokers, ship 50 00

4. Brokers, street 50 00"

The plaintiff moved to strike out of the answer...