Mcgee v. French

• Decision Date: 29 June 1897
• Court: South Carolina Supreme Court
• Parties: McGEE v. FRENCH.

27 S.E. 487

49 S.C. 454

McGEE

v.FRENCH.

Supreme Court of South Carolina.

June 29, 1897.

Assignment by Bailor — Delivery by Bailee— Evidence.

1. Where the bailor assigned the property, and the bailee afterwards delivered it to him, and the assignee sued the bailee for conversion, it was error to exclude evidence that the assignee had given the bailee notice of the assignment before the delivery.

2. It was proper, however, to exclude evidence of a message delivered by the assignee to a third person before the delivery, where it was not intimated that evidence would be introduced that such message was communicated to the bailee.

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

Action by. B. M. McGee against Jesse L, French for conversion. From a judgment for defendant, plaintiff appeals. Reversed.

J. A. McCullough, for appellant.

J. A. Mooney, for respondent.

GARY, A. J. The plaintiff brings this action, alleging in his complaint: "(1) That on the——day of November, 1891, the plaintiff was the owner and entitled to the possession of two bales of middling lint cotton, aggregating nine hundred pounds, and of the value of seventy-five dollars. (2) That on the said day of November, 1891, the defendant, then being in possession of the said cotton, unlawfully disposed of the same, and has since, upon demand, refused to deliver the same to plaintiff, or pay him the value thereof, to his damage one hundred dollars." The defendant, in his answer, denies the allegations of the complaint, and sets up as a defense that he had no notice of the plaintiff's rights at the time he turned the cotton over to his sister, Mrs. Charles. On the 4th of December, 1890, an agreement was entered into between W. H. Charles and B. F. Thompson, whereby the said Charles leased to the said Thompson for the year 1891 the tract of land upon which the cotton in dispute was produced. The said Thompson agreed to pay as rent for said land 900 pounds of lint cotton, which was to be delivered to the defendant, J. L. French, for the said Charles. On the 4th of December, 1890, Charles, for value, assigned the said contract to the plaintiff, B. M. McGee. The cotton was delivered to the defendant, who in turn delivered it to Mrs. Charles, his sister. The cotton was afterwards sold. The case was tried before his honor, Judge Benet, at the November, 1895, term of the court. The jury rendered a verdict in favor of the defendant.

The plaintiff appealed upon exceptions, the first of which is as follows: "(1) In not allowing the witness for the plaintiff, W. V. Kirby, to testify as to the contents of a verbal message sent by plaintiff to B. F. Thompson, the tenant, with reference to plaintiff's rights under the rent contract, and the delivery of the cotton provided for therein, and which message was delivered by the said Kirby to Thompson, and by Thompson to the defendant, before he turned over to him the cotton in dispute, said testimony being a link in the chain of notice which plaintiff was required to give of his rights as assignee of Charles." When the witness W. V. Kirby was on the stand the following took place: "Did Mr. McGee, at any time in 1891, send a message to Thompson in reference to this rent contract? If so, what was it? (Mr. Mooney objects. Objection sustained. Mr. McCullough excepts.) The Court: I will allow the first part. (Mr. Mooney excepts.) Did Mr. McGee send a message by you to B. F. Thompson? Yes, sir. Did you deliver it? Yes, sir. What was that message? The Court: Not that. (Mr. McCullough excepts. Plaintiff rests.)" Thompson is not a party to the action, and it was irrelevant what message was delivered by Kirby to him, unless testimony had also been introduced tending to show that the message wascommunicated to the defendant. It was not even intimated to his honor that testimony was to be introduced for the purpose of showing that the message delivered to Thompson was communicated to the defendant. The circuit judge was, therefore, not in error in thus ruling.

The second exception is as follows: "(2) In not allowing plaintiff to testify as to said message, and in not allowing him to answer the question: 'After this contract was assigned to you, what did you do, if anything, with reference to that cotton?' " When the plaintiff was on the stand the following took place: "After this contract was assigned to you, what did you do, if anything, with reference to that cotton?" "About the last of July Mr. Vincent Kirby was in my office, and — (Mr. Mooney objects. Objection sustained.)" This question was competent, as the plaintiff had the right to show that he had given the defendant notice of his claim. When the question was ruled incompetent, the plaintiff was denied this opportunity. If the answer to the question had been inadmissible as testimony, the. defendant could have had it ruled out. As there was error in ruling that the question was incompetent, this exception must be sustained.

The third exception is as follows: "(3) In charging the jury: 'It is for you to consider the. testimony in this case, whether this was a question of bailor or bailee, '—such question being one of law for the court." That portion of his honor's charge bearing upon the question raised by this exception is as follows: "You have heard a good deal in the argument about the question of bailor and bailee. It may be necessary that I should explain those terms to you. When lawyers speak of a bailment, they mean a delivery of some personal property to another party, to be held by that person to whom it is...