Marlboro Cotton Mills v. O'Neal
|26 July 1920
|MARLBORO COTTON MILLS v. O'NEAL.
|South Carolina Supreme Court
Appeal from Common Pleas Circuit Court of Marlboro County; Ernest Moore, Judge.
Action by the Marlboro Cotton Mills against J. R. O'Neal. From a judgment of nonsuit, plaintiff appeals. Reversed.
McColl & Stevenson, of Bennettsville, for appellant.
Townsend & Rogers, of Bennettsville, for respondent.
This is an action for damages for breach of a contract for the sale of cotton for future delivery. Plaintiff alleges that on March 2, 1916, defendant and C. E. Exum entered into a contract in writing, whereby defendant agreed to sell Exum 50 bales of cotton, to be delivered on or before November 1 1916, at 10 1/4 cents per pound; that Exum assigned the contract to plaintiff for value a few days after its execution; that plaintiff duly notified defendant of the assignment, and that plaintiff would receive and pay for the cotton, and expected defendant to deliver it according to the contract; that it was the bona fide intention of Exum and defendant, at the time of making the contract, to receive and deliver the cotton in kind, and plaintiff had the like intention when it took the assignment of the contract. An alleged copy of the contract was attached to the complaint as an exhibit.
In his answer defendant denies "each and every allegation of the complaint not herein admitted." He then admits "so much of paragraph 2 as alleges that defendant and C E. Exum entered into a contract of similar nature and tenor to the copy attached to the complaint, but he does not know whether said copy is a true and correct copy or not." He then goes on to set forth other defenses which need not be stated.
At the trial plaintiff put up C. A. Easterling, the witness to the contract, to prove its execution. Easterling had been an employé--perhaps a clerk--in the office of Exum who was a cotton buyer. On his examination, he said that Exum did not the sign the contract with his own hand, but that he (Easterling) signed Exum's name to it. Plaintiff then offered to prove by Easterling, and also by Exum, that Easterling had authority to sign Exum's name to the contract. But the court excluded the testimony, holding that, where the law requires a contract to be in writing, the authority of an agent to execute it must also be in writing. Plaintiff then took the position that the execution of the contract was admitted by defendant's answer; but the court ruled otherwise, and, in these circumstances, plaintiff asked to be allowed to take a nonsuit, which was ordered, and plaintiff appealed.
Defendant moved this court to dismiss the appeal, on the ground that a party cannot appeal from an order granted on his own motion. The motion was refused, on the ground that the nonsuit, although asked for by plaintiff, was not voluntary in the sense in which that word is used, when it is said that a voluntary order of nonsuit is not appealable. A nonsuit was the inevitable consequence of a ruling adverse to plaintiff's contention, and by that circumstance it was made involuntary. American Publishing Co. v. Gibbes, 59 S.C. 215, 37 S.E. 753; Phosphate Co. v. Arthurs, 97 S.C. 358, 81 S.E. 663.
The answer is hardly sufficient to put in issue the execution of the contract. It admits the execution of a contract "of similar nature and tenor to the copy attached to the complaint," and questions only whether the copy attached is correct. There was no intimation or suggestion that more than one contract between these parties had been executed; hence, fairly construed, the answer did not put in issue the execution of the contract, but merely the correctness of the copy attached to the complaint, which could be determined by comparison with the original.
But although we think that, on proper construction of the answer, it did not put in issue the execution of the contract, we are not prepared to hold that his honor erred in requiring plaintiff to prove it, because it is apparent from the record, showing what took place at the trial, that both parties construed the answer as intending to raise that issue. Plaintiff's attorney evidently so construed it, because he came...
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