Mcconnell v. Kitchens

• Decision Date: 01 March 1884
• Citation: 20 S.C. 430
• Parties: MCCONNELL v. KITCHENS.
• Court: South Carolina Supreme Court

20 S.C. 430

MCCONNELL

v.KITCHENS.

Supreme Court of South Carolina.

Mar. 1st, 1884.

1. Where a defendant in his answer asserts that there are stipulations in the contract other than those stated in the complaint, he does not admit the plaintiff's cause of action as stated in the complaint, and, therefore, is not entitled to open and reply.

2. Under the acts of 1872 (15 Stat. 33) and 1879 (17 Stat. 72), the sale of commercial fertilizers is forbidden unless the regulations prescribed by those acts were complied with-those requirements not being solely for revenue, but to protect the public from imposition and fraud, and their violation being declared a misdemeanor and punishable by recurring penalties.

3. The general rule is, that a contract to do an act which is prohibited by statute, or which is contrary to public policy, is void and cannot be enforced in a court of justice, and such prohibition may be implied from the imposition of a penalty.

4. Commercial fertilizers sold in this State must bear a tag stating the several particulars required by the statutes, one of the most important of which is “the constituent elements” of the fertilizer; and this is necessary whether the chemical ingredients specified in the statute are present or not; but if asserted to be present, then the percentage of such ingredients.

5. Where a merchant sold prepared agricultural lime in this State without a tag stating the chemical composition of such fertilizer, and the date of analysis, and took a note for the purchase-money- held, in action on this note, that the action was forbidden by statute, illegal and void, and the complaint was dismissed.

Before KERSHAW, J., Chester, March, 1883.

Action by W. H. McConnell against Addison F. Kitchens. The opinion fully states the case.

Messrs. Jno. M. McNeel and G. G. Dent, for appellant.

Messrs. J. & J. Hemphill, contra.

The contract was not illegal and void. 17 Stat. 75. The chemical composition is not to be stated unless certain specified ingredients are asserted to be present. The tax was for purposes of revenue, and, therefore, its non-payment would not vitiate the contract. 14 Mees. & W. 452, 463; 11 East 180. As matter of fact it was paid, and receipt was exhibited at the trial. A sale without compliance with the requirements, is nowhere prohibited in the statute, and, therefore, the contract was not void. 26 Am. Rep. 149;25 Id. 677. There are varying degrees of penalties for the several omissions; if the contract is void, there would be same for all. Absence of a tag would be as severely punished as a false analysis. The act of 1880 (17 Stat. 414), passed after these sales, provides for a forfeiture, thus showing that none previously existed. See 12 How. 85;75 Va. 239(40 Am. Rep. 720);106 Mass. 435(8 Am. Rep. 346).

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

This was an action on a contract in writing, under seal, dated March 4th, 1880, by which the defendant promised to pay the plaintiff $310.50 on or before November 1st, 1880. The consideration expressed in the writing was eleven and a half tons of Lee's P. A. lime (meaning Lee's prepared agricultural lime). The defendant, in his answer, alleged that the contract upon which the action was founded was different in form, and contained other material stipulations from that described in the complaint, and set up two distinct affirmative defenses- one of failure of consideration, and the other that the contract was illegal, being made in violation of certain statutes hereinafter quoted.

The defendant claimed the right to open and reply, both in evidence and argument, which was refused and exception duly taken. Testimony was offered to sustain both of the defenses set up in the answer. To so much of the charge as relates to the defense of failure of consideration, no exception was taken. “On the second point made by the defendant, viz., the plea of illegality of the consideration and of the contract, the following facts were proven: First. That the plaintiff sold to the defendant a commercial fertilizer, known as Lee's prepared agricultural lime, on March 4th, A. D. 1880; that the amount sold and delivered to the defendant was eleven and one-half tons, put up in bags, each one of which weighed one hundred and twenty-five pounds; that the bags had on them the name, location and trade-mark of the manufacurer, but did not have the chemical composition of the contents of the bags, or the date of its analysis, or that the privilege tax had been paid, or any tags at all. The plaintiff admitted the fertilizer was sold and delivered to the defendant in this condition, but proved that he had never asserted or claimed that this lime had any of the chemical ingredients named and specified in section 18 of the act of assembly creating the department of agriculture, approved December 23d, 1879, and was ready and offered to prove a receipt showing that the privilege tax had been paid to the department of agriculture, which was ruled out by the judge, said receipt being without date, and did not show when the privilege tax was paid. The further fact was shown that the note sued on for $310.50 was given by the defendant to the plaintiff on March 4th, A. D. 1880, for the fertilizer sold and delivered as described aforesaid.”

The Circuit judge held that the contract was not illegal and could be enforced, to which exception was duly taken. The jury rendered a verdict for the plaintiff for the sum of $250, and judgment being entered thereon, the defendant appeals upon two grounds, substantially as follows: 1. That the Circuit judge erred in holding that the plaintiff was entitled to open and reply. 2. Because the Circuit judge erred in holding that the contract sued upon was not illegal, and could be enforced by an action at law.

The question as to which party is entitled to open and reply depends upon an inspection of the pleadings only, and must be determined without any reference to the testimony which may be subsequently offered. The rule seems to be that when the defendant admits upon the record the plaintiff's cause of action, as stated in the complaint, and relies solely upon an affirmative defense based upon new matter stated in the answer, he is then entitled to open and reply, as the plaintiff in such a case would have nothing whatever to prove, and the defendant would assume the burden of proving his affirmative defense, and thus in reality become the actor. But unless this is done, the plaintiff is bound to establish his cause of action, and, therefore, entitled to open and reply. Brown v. Kirkpatrick, 5 S. C. 267;Burckhalter v. Coward, 16 S. C. 435;Kennedy v. Moore, 17 S. C. 464;Boyce v. Lake, 17 Id. 481. In this case the plaintiff, in his complaint, stated as his cause of action a certain contract in writing containing certain terms and stipulations, while the defendant, in his answer, in effect denied that the contract was properly described in the complaint, and, on the contrary, alleged that the contract really contained other terms and stipulations, as appeared by a copy thereof set out in the answer. It cannot, therefore, be said that the defendant admitted the plaintiff's cause of action, as stated in the complaint, and hence, under the rule above stated, he was not entitled to open and reply.

For a proper understanding of the question raised by the second ground of appeal, it will be necessary to consider the terms of the statutes which it is alleged were violated in the contract sued upon. The first statute upon the subject is the act of February 2d, 1872, (15 Stat. 33,) the language of which is as follows: “All commercial fertilizers manufactured, sold or kept for sale in the State of South Carolina, shall have affixed to every bag, barrel or parcel thereof a written or printed label, which shall specify the names of the manufacturer and seller, their respective places of business, and the constituent parts thereof. Section 2. Whoever manufactures, sells or keeps for sale any commercial fertilizer or fertilizers, not labeled in accordance with the provisions of the preceding section, *** shall be punished by a fine of twenty dollars for the first offense, and a fine of forty dollars for the second and every subsequent offense,” &c.

The next legislation upon the subject will be found in sections 18 and 19 of “An act to create a department of agriculture, defining its purposes and duties, and charging it with inspection of phosphates and regulation of sales of commercial fertilizers,” approved December 23d, 1879, (17 Stat. 72.) The language used in those sections is as follows: “Section 18. That all persons or companies engaged in the manufacture or sale of fertilizers or commercial manures shall pay to the commissioner of agriculture twenty-five cents per ton for every ton of such fertilizer or commercial manure sold or offered for sale in this State, the said amount to be paid into the State treasury for the exclusive use and benefit of the department of agriculture. Any person, or officer or agent of any corporation, neglecting to pay the sum provided in this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in the discretion of the court, which fine shall be paid into the State treasury for the exclusive use and benefit of the department of agriculture. Section 19. That every bag, barrel or other package of such fertilizers or commercial manure, as above designated, offered for sale, or delivered after sale in this State, shall have thereon a plainly printed label or stamp which shall truly set forth the name, location and trade-mark of the manufacturer, also the chemical composition of the contents of such package and the real percentage of any of the following ingredients, asserted to be present, to wit: soluble and precipitated phosphoric acid, soluble potassa, ammonia or its equivalent in nitrogen, together with the date of its analysis, and that...