Harby v. Byers Lumber Co.

• Decision Date: 29 May 1913
• Citation: 78 S.E. 522,95 S.C. 33
• Parties: HARBY v. BYERS LUMBER CO.
• Court: South Carolina Supreme Court

78 S.E. 522

95 S.C. 33

HARBY v. BYERS LUMBER CO.

Supreme Court of South Carolina

May 29, 1913

Appeal from Common Pleas Circuit Court of Hampton County; T. H Spain, Judge.

"To be officially reported."

J. W Vincent, of Hampton, and Bates & Simms, of Barnwell, for appellant. Warren & Warren, of Hampton, for respondent.

GARY C.J.

The record contains the following statement of facts: "This is an action in claim and delivery brought by the plaintiff by the service of a summons, complaint, affidavit, and bond in the usual form, to recover possession of certain chattels from the defendants. The plaintiff claims the property under a chattel mortgage given by the Osceola Lumber Company to plaintiff, to secure the purchase money of the property which chattel mortgage was duly recorded in the office of clerk of court for Barnwell county within the time allowed by law. The case came on for trial before Judge T. H. Spain and a jury, which trial resulted in a verdict for the defendants. Before adjournment of court, counsel for plaintiff made a motion for a new trial, on the grounds that his honor had erred in submitting to the jury an issue as to whether a demand had been made or not, the plaintiff's counsel taking the position that no demand was necessary in this case, and also on the ground that the jury had disregarded the charge given them by the court. This motion was refused, and judgment was duly entered on the verdict. From this judgment notice of intention to appeal to this court was duly served and filed."

We will first consider the exceptions raising the question whether his honor, the presiding judge, erred in submitting to the jury the issue as to a demand; appellant's counsel taking the position that no demand was necessary.

The complaint alleges "that the defendants are in possession of the said personal property, and wrongfully detain the same from the plaintiff, although demand has been duly made upon the defendants for the return of the said property."

The defendant set up as a defense "that a part of the property described in the complaint, or some property answering the description therein contained, is in possession of these defendants, having been purchased in the open market for value from the person having control of the same, without notice of the plaintiff's claim thereto, or any part thereof." It was admitted upon the trial of the case that if John Hart, former secretary...