Mills v. O'neal, (No. 10486.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtHYDRICK
Citation103 S.E. 781
Docket Number(No. 10486.)
Decision Date26 July 1920

103 S.E. 781


(No. 10486.)

Supreme Court of South Carolina.

July 26, 1920.)

Appeal from Common Pleas Circuit Court of Marlboro County; Ernest Moore, Judge.

Action by the Marlboro Cotton Mills against J. R. O'Neal. Prom a judgment of nonsuit, plaintiff appeals. Reversed.

McColl & Stevenson, of Bennettsville, for appellant.

Townsend & Rogers, of Bennettsville, for respondent.

HYDRICK, J. This is an action for damages for breach of a contract for the sale

[103 S.E. 782]

of cotton for future delivery. Plaintiff alleges that on March 2, 1910, 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 employe—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...

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7 cases
  • Adams v. Hoskins, Case Number: 16572
    • United States
    • Supreme Court of Oklahoma
    • April 12, 1927
    ...104 N.W. 49; Savannah Electric Co. v. Lowe (Ga. App.) 27 Ga. App. 350, 108 S.E. 313; Marlboro Cotton Mills v. O'Neal (S. C.) 114 S.C. 459, 103 S.E. 781; Dowell v. Boyd (Ark.) 140 Ark. 52, 215 S.W. 169. ¶12 Again, a reason why the plaintiff cannot prevail on this contention is that since cou......
  • Harris v. Cochise Health Systems, 2 CA-CV 2006-0193.
    • United States
    • Court of Appeals of Arizona
    • June 19, 2007
    ...plaintiff not reviewable because if court erred, it was at plaintiff's request); but cf., Marlboro Cotton Mills v. O'Neal, 114 S.C. 459, 103 S.E. 781, 782 (1920) (nonsuit requested by plaintiff "was the inevitable consequence of a ruling adverse to plaintiff's contention, and by that circum......
  • Allen v. Atlanta & Charlotte Air Line Ry. Co., 16306
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 1950
    ...will not be regarded as voluntary. This principle is well illustrated by the cases of Marlboro Cotton Mills v. O'Neal, 114 S.C. 459, 103 S.E. 781; Southern States Phosphate Co. v. Arthurs, 97 S.C. 358, 81 S.E. 663; and American Publishing Engraving Company v. Gibbs, 59 S.C. 215, 37 S.E. 753......
  • Kysar v. BP America Prod. Co., Opinion Number: 2012-NMCA-036
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 19, 2012 was a more efficient way to secure a right to appeal than by obtaining a writ of mandamus); Marlboro Cotton Mills v. O'Neal, 103 S.E. 781, 782 (S.C. 1920) (determining that when the district court's rulings foreclose the plaintiff's claims the plaintiff may enter a nonsuit that will not ......
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