Gaines v. Durham
Decision Date | 08 May 1923 |
Docket Number | 11215. |
Parties | GAINES v. DURHAM ET AL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Pickens County; T. J Mauldin, Judge.
Action by R. G. Gaines against C. C. Durham and C. G. Masters. Judgment for plaintiff, and the last-named defendant appeals. Affirmed.
The circumstances in the Rice v. Medlin Case, referred to in the opinion, are substantially as follows:
The complaint alleged:
"That between the 26th day of January, 1918, and the 9th day of November, 1918, he (plaintiff) sold and delivered unto the defendant C. E. Medlin goods, wares, and merchandise * * * at the request, instance, and order of the defendant W. I Rice, and the said W. I. Rice guaranteed the payment of the said amount, that no part of said amount has been paid except the sum of $146.15, leaving a balance due unto the said A. Rice by the said C. E. Medlin and W. I Rice, the sum of $94.83. * * *"
The plaintiff testified:
* * *"
Cross-examination:
* * *"
Defendant C. E. Medlin testified:
Cross-examination:
* * *"
Motion for nonsuit was refused, and the magistrate rendered the following judgment:
"From the testimony, I find that W. I. Rice did not guarantee the account as a collateral promise, but that he had such a direct interest in the matter as to take the case out of the statute of frauds, as is laid down by the Supreme Court in the case of Robertson v. Hunter, 29 S.C. 13, 14, and also in the case of Turner v. Lyles, 68 S.C. 396."
The circuit court affirmed the judgment of the magistrate for the reasons stated therein.
The exceptions to the judgment of the circuit court are as follows:
Martin & Blythe, of Greenville, and Craig & Keith, of Pickens, for appellant.
Carey & Carey, of Pickens, for respondent.
Action for $71.61 upon an account for fertilizer sold by the plaintiff to the defendants.
Masters owned the land upon which the fertilizer was to be used, and Durham was his tenant.
The evidence tends to show that Durham applied to the plaintiff for the fertilizer, and the plaintiff, knowing that Durham was a tenant upon the land of Masters, before allowing Durham to obtain the fertilizer, went to Masters and asked him about selling to Durham; that Masters said, "Let Durham have what he wants and I will see that it is paid;" that Durham got the fertilizer, and it was charged upon the plaintiff's books to both Durham and Masters; that plaintiff made frequent efforts to collect from Durham and failing, made demand upon Masters, which being refused, suit was instituted in magistrate's court against both.
The case was tried by a jury, which rendered a verdict in favor of the plaintiff against Masters alone; no reference being made to Durham.
Defendant Masters appealed to the circuit court, taking by his exceptions the following positions: (1) That the undertaking of Masters was not an original one but collateral, to answer for the debt of Durham, and, not being in writing, was obnoxious to the statute of frauds. (2) That the undertaking of Masters being collateral only, if valid, the verdict should have been against both defendants.
Upon the hearing of the appeal, the circuit judge overruled the defendant's exceptions and affirmed the judgment of the magistrate's court.
The defendant now appeals to this court upon the same grounds made upon the appeal to the circuit court.
As to the first position: Masters being the landlord of Durham was vitally interested in his obtaining fertilizer for use in the cultivation of the crop, and under these circumstances his undertaking to see that what he obtained was paid for was an original and not a collateral undertaking .
In Lorick v. Caldwell, 85 S.C. 94, 67 S.E. 143, the court approved the following:
"Wherever the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form, a promise to pay the debt of another."
In Tindal v. Touchberry, 3 Strob. 177, 49 Am. Dec. 637, it is said:
( )
In Hindman v. Langford, 3 Strob. 207, quoting from the syllabus, it is held:
"A promise is taken out of the statute by a new and distinct consideration, coextensive with it, and moving not to the third person, but to the...
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... ... motion for a new trial. Hence, the question, raised here for ... the first time, is not properly before this court for ... consideration. Gaines v. Durham et al., 124 S.C ... 435, 117 S.E. 732 ... The ... Gaines Case was an action against Durham and Masters on an ... ...
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