Gem Chemical Co. v. Youngblood

• Decision Date: 27 June 1900
• Parties: GEM CHEMICAL CO. v. YOUNGBLOOD et al.
• Court: South Carolina Supreme Court

36 S.E. 437

58 S.C. 56

GEM CHEMICAL CO. v. YOUNGBLOOD et al.

Supreme Court of South Carolina

June 27, 1900

Appeal from common pleas circuit court of Greenwood county; R. C Watts, Judge.

Action by the Gem Chemical Company against A. G. Youngblood and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Ansel Cothran & Cothran, for appellants.

Graydon & Giles, for respondent.

GARY A. J.

As the questions raised by the exceptions involve the construction of the pleadings, the material allegations of the complaint and answer will be set out. They are as follows:

Complaint The first paragraph alleges the corporate existence of the plaintiff. The second paragraph alleges the co-partnership of the defendants. "(3) That on the 11th day of July, 1898 at Greenwood, S. C., an account was stated between the said plaintiff and the said defendants, and upon such statement a balance of two hundred and seventeen dollars and sixty-four cents was found to be due from the said defendants to this plaintiff. (4) That thereupon on the same day, to wit, the 11th day of July, 1898, the said plaintiff made its bill of exchange in writing, dated the 21st day of June, 1898, directed to the said defendants, under their firm name of Youngblood & Cothran, at Greenwood, S. C., and thereby required the said defendants to pay to the order of the plaintiff two hundred and seventeen dollars and sixty-four cents, sixty days after said date, for value received, a copy of which bill of exchange is hereto attached as a part of this complaint, and marked 'Exhibit A."' The fifth paragraph alleges the acceptance of the draft by the defendants on the 11th of July, 1898. The sixth paragraph alleges that no part of said bill of exchange has been paid.

Answer: "(1) The defendants admit that they accepted the plaintiff's draft as set forth in the complaint, and that no part thereof has been paid. (2) They deny the third paragraph of the complaint. (3) The defendants allege that the said acceptance was executed by them in consideration of the sale to them by plaintiff of 162 gallons of Kola Pepsin, and for no other consideration, under a representation and warranty by the plaintiff at the time of sale that the said Kola Pepsin was a fit and proper material for soda-water drinks, and suitable for such purposes. (4) That the defendants then accepted and purchased said goods for sale to proprietors of soda fountains, trusting in the said representation and warranty of the plaintiff, all of which the plaintiff then knew. (5) That the said goods were not fit or proper for said purpose, but altogether unsuitable, and have always been and are altogether useless to the defendants." The defendants also set up in their answer a counterclaim for $100 arising out of the facts alleged in paragraphs 3, 4, and 5 of their answer.

The jury rendered a verdict in favor of the plaintiff. The defendants appealed upon exceptions, which will not be considered in detail, as the argument of the appellants' attorneys shows that they raise practically but three questions, to wit: "(1) Did the circuit judge err in deciding the issue of account stated? (2) Did he err in excluding evidence to the effect that the alleged account stated was procured by misrepresentations and fraud? (3) If defendants are precluded from attacking the account stated, were they entitled to show that there was a failure of consideration in the acceptance of the draft, which was brought about by the misrepresentations of plaintiff?"

We will first consider whether there was error on the part of his honor, the presiding judge, in his ruling as to the account stated. The account stated is as follows:

"Baltimore, Oct. 1st, 1898.

"Youngblood & Cothran, Greenwood, S. C., bought of Gem Chemical Co., of Baltimore city:

1898.
June 21st, Kola Pepsin		$243 00
Cr.
July 12th, freight	$ 9 36
" rebate 10c. per gallon	16 00	25 36
		-------
		$217 64

"Rec. accepted draft, $217.64, dated 60 days from June 21st, and accepted by Y. & C. on July 11th, 1898."

The only grounds upon which the...