Gadsden v. Home Fertilizer & Chemical Co.

• Decision Date: 11 September 1911
• Citation: 72 S.E. 15,89 S.C. 483
• Parties: GADSDEN v. HOME FERTILIZER & CHEMICAL CO.
• Court: South Carolina Supreme Court

72 S.E. 15

89 S.C. 483

GADSDEN v. HOME FERTILIZER & CHEMICAL CO.

Supreme Court of South Carolina

September 11, 1911

Appeal from Common Pleas Circuit Court of Sumter County; J. W. De Vore, Judge.

"To be officially reported."

Action by Emanuel J. Gadsden against the Home Fertilizer & Chemical Company. From a judgment for plaintiff, defendant appeals. Reversed unless a remittitur is filed, in which event judgment is affirmed.

Purdy & Bland, for appellant. Lee & Moise, for respondent.

HYDRICK J.

This is an action for damages for breach of contract. In substance the complaint alleges: That on January 18, 1910, defendant sold plaintiff five tons of fertilizer at the price of $144.60; that plaintiff paid $68.69, part of the agreed price, and defendant agreed to deliver the fertilizer at Claremont, but failed, after demand, to do so; that, relying upon defendant's performance of the contract, plaintiff prepared his land and made the other arrangements necessary to plant his crops of corn and cotton; but, by reason of defendant's breach of the contract, he was delayed in planting, and compelled to plant his crops without fertilization, to his damage $250; that defendant also refused, after demand, to return the money paid by plaintiff. The prayer is for judgment for $318.69.

The defendant made default. The claim for damages being unliquidated, under section 267, Code Civ. Proc., the relief to be afforded had to be ascertained by the verdict of a jury. The plaintiff gave testimony in support of the allegations of his complaint. He testified that he planted about 16 acres of corn and about 32 of cotton, and that in his opinion he did not make more than half as much as he would have made if defendant had furnished him the fertilizer according to the contract; that he had some fertilizer, and if he had gotten that which he contracted for, he could have made nearly ten bales of cotton, and might have made more and he thought his damages amounted to $250. That is the substance of the evidence as to damages. The court directed the jury to find a verdict for plaintiff for $318.69 --the sum demanded in the complaint. Some days after the rendition of the verdict, but during the term, and before judgment was entered upon it, the defendant served notice of a motion to set aside the service of the summons and complaint, and, failing in that, to set aside the verdict and for a new trial, on the ground that it had never been served with process and had had no notice of the action until after the verdict. The motion was supported by an affidavit of the treasurer of the defendant company to the effect that Mr. T. S. Sumter, upon whom the summons and complaint was served as the agent of the defendant, which is a foreign corporation, was not, in fact, its agent. At the hearing of the motion, defendant's attorney stated that, if his motion to set aside the service was refused, he would move on the minutes to set aside the verdict, on the ground that there was no evidence to support the verdict for damages, and on the further ground that the court erred in directing the verdict, instead of leaving it to the jury to find the amount of damages. The defendant undertook to prove by Mr. Sumter that he was not its agent, but Mr. Sumter testified to the contrary--that he was defendant's agent, and that, when the summons and complaint were served on him, he mailed them to defendant. There was other evidence tending to prove that he was defendant's agent, and that defendant had held him out as such. There was no error, therefore, in refusing to vacate the service.

Upon the motion to set aside the verdict on the grounds stated, the court ruled that plaintiff having proved all the allegations of his complaint, and his testimony being undisputed, there was no error in directing the verdict, and refused the motion.

Before discussing the appeal from this ruling, it is necessary to dispose of an objection to its consideration by this court, which has been interposed by respondent, to wit, that the grounds stated were not mentioned in the written notice of the motion served upon him. This objection comes too late. These grounds were presented to and considered by the circuit court without objection. If the objection made here had been made there, it might have been obviated. Hence the ruling is properly before this court.

The defendant appeals both from the order refusing its motion and also from the judgment.

Ordinarily no appeal lies from a judgment by default. Odom v Burch, 52 S.C. 305, 29 S.E. 726. But where the defect in the judgment is radical--that is, one which goes to the foundation of plaintiff's cause of action, or to the authority of the court to render the judgment--it may be remedied by appeal. In McMahon v. Pugh, 62 S.C. 506, 40 S.E. 961, it was held that in a default case the court can render any judgment to which the plaintiff is entitled under the facts alleged in his complaint, not inconsistent with the prayer thereof, and, if there be error in granting relief beyond the scope of the allegations of the complaint, the remedy is by appeal. At page 510 the court quotes with approval the following from Pomeroy: "If every fact necessary to the action is stated, the plaintiff...