Gen. Electric Co v. Blacks-burg Land & Improvement Co

• Decision Date: 09 March 1896
• Citation: 46 S.C. 75,24 S.E. 43
• Court: South Carolina Supreme Court
• Parties: GENERAL ELECTRIC CO. v. BLACKS-BURG LAND & IMPROVEMENT CO.

24 S.E. 43

46 S.C. 75

GENERAL ELECTRIC CO.

v.BLACKS-BURG LAND & IMPROVEMENT CO.

Supreme Court of South Carolina.

March 9, 1896.

Appeal—Review—Objection not Made Below —Variance.

1. A judgment will not be reversed because of the admission in evidence of a letter without proof of the signature thereto, where no objection on that ground was made in the trial court.

2 Proof of an indebtedness on account for making repairs on articles owned by defendant, under a complaint stating the cause of action as being on account for goods sold, will not constitute a variance for which a judgment will be reversed, where a copy of the account as proved was made a part of the complaint, and defendant went to trial thereon, and made no objection in the trial court.

Appeal from common pleas circuit court of York county; W. C. Benet, Judge.

Action by the General Electric Company against the Blacksburg Land & Improvement Company. Judgment for plaintiff, and defendant appeals. Affirmed.

N. W. Hardin, for appellant.

J. E. Webster and C. E. Spencer, for respondent.

POPE, J. This was an action by the plaintiff to recover from the defendant the sum of $135.82. It came on for trial on the 14th day of May, 1895, at Yorkville, S. C, in the court of common pleas, before his honor, Judge Benet; a trial by jury having been waived in open court, and the waiver duly entered upon the judge's, minutes. The judge gave the plaintiff judgment for the amount sued for, and from this judgment the defendant now appeals to this court, upon the following grounds: (1) Because it was error to admit in evidence the letter of John F. Jones, as it was not sufficiently proven, and was irrelevant; (2) because it was error to give judgment against the defendant when there was no testimony upon which such a judgment could have been predicated; (3) because plaintiff sued for "goods sold and delivered, " and nothing more, whereas the proof, uncontradicted, was that, if the defendant owed the plaintiff anything, it was for work and labor performed on 54 incandescent electric light distributors, that always belonged to the defendant; (4) because there was a fatal variance in the allegations contained in the complaint and the proof in the case, and the complaint should have been dismissed. We will now dispose of these grounds of appeal seriatim.

When Mr. Webster, as plaintiff's attorney, received this claim from plaintiff for collection, he addressed a letter to Maj. John P. Jones, as president of the defendant corporation, asking for payment of this account. The letter of Maj. John P. Jones, as such president, in reply to the letter of Mr. Webster, admitted the justice of the plaintiff's claim, asking indulgence for a while. The "case" shows that, when the plaintiff offered the introduction of this letter of Maj. Jones in testimony, it was objected to as irrelevant. Now, the defendant seeks, for the first time, to complain that the signature of Maj. Jones was not proved. This be is not allowed to do. The letter, relating to this claim, and promising its payment by the president of the defendant corporation, was perfectly relevant, and the circuit judge was not in error in receiving it. So much for the first exception.

The second exception is too general to warrant any...