Robertson v. Hunter

• Decision Date: 19 June 1888
• Citation: 6 S.E. 850,29 S.C. 9
• Parties: ROBERTSON v. HUNTER.
• Court: South Carolina Supreme Court

6 S.E. 850

29 S.C. 9

ROBERTSON v. HUNTER.

Supreme Court of South Carolina

June 19, 1888

Appeal from common pleas circuit court of Laurens county; NORTON Judge.

Action by Toliver Robertson, survivor of Mills & Co., against J. P Hunter, on an account for goods sold and delivered. There was a judgment for plaintiff, and defendant appeals.

Holmes & Simpson and Ball & Watts, for appellant.

W. H Martin, for respondent.

McIVER J.

It seems that the plaintiff and one William Mills, now deceased were copartners in trade under the name and style of Mills & Co., and the action is brought by the plaintiff, as survivor of that firm, to recover the amount of an account for merchandise sold and delivered by Mills & Co. to the defendant between the 8th of January, 1876, and the 10th of December, 1882. The defendant, by his answer, sets up two special defenses, in addition to a general denial: (1) "That he has been released and discharged from all liability thereupon by a written release under the hand of William Mills, deceased, executed on the 26th day of January, 1884, of which the following is a copy: ' The State of South Carolina, County of Laurens. This witnesseth that J. P. Hunter, on the 25th January, 1884, delivered to me, the undersigned, William Mills, his five several sealed notes, aggregating the sum of two thousand dollars, with a mortgage to secure the same, in full discharge and settlement of all obligations of a pecuniary character. Witness my hand and seal this, the 26th January, 1884. [Signed] WILLIAM MILLS.' (2) The statute of limitations as to so much of the account as was contracted prior to the 30th July, 1880." It appears from the testimony that, at the time the account was contracted, Hunter was insolvent; and the plaintiff, having some hesitation about crediting him, was told by Mills, his copartner, who was the uncle of Hunter: "You let him have the goods, and I will see it paid;" but at the same time said: "You charge the goods to Dr. Hunter." Accordingly the defendant was allowed to run up the account sued upon, and the goods were charged on the books to Hunter. It also appeared from the testimony that, at the time the paper above copied was signed by William Mills, the defendant was indebted to him in a large amount,--probably some ten or fifteen thousand dollars,--a portion of which, but how much does not appear, seems to have been barred by the statute of limitations, and that Mills had no security for any part of this large indebtedness. The circuit judge charged the jury that it was for him to construe the written paper set up in the answer as a release, and he instructed them that such paper could only be "a discharge and settlement of all obligations between the contracting parties,--that is, between Dr. Hunter and Mr. Mills;" and that the paper, as a release, is fatally defective in not being under seal, and hence that the paper should have no effect in framing the verdict. He therefore instructed the jury to find for the plaintiff the amount of the account which accrued after the 30th of July, 1880, after deducting the credits thereon. The counsel for defendant requested the judge to charge the jury that the fact of the account being charged upon the books to Hunter is only prima facie evidence; that they may take into consideration other evidence as to whether or not the debt really was a debt which Mills assumed that Hunter owed him. To this request the judge responded that there was no evidence by which, under the statute of frauds, the estate of William Mills could have been made liable for the account, and he therefore instructed the jury to find for the plaintiff the amount of the account which was admitted, after deducting the credits, and so much as was barred by the statute of limitations. The jury having found a verdict in accordance with these instructions, defendant appeals upon the following grounds: "(1) Because his honor erred in charging the jury that the paper put in evidence, executed by William Mills as an acknowledgment of settlement and compromise, was a release, and void for want of a seal. (2) His honor erred in charging the jury that the goods being charged to the defendant, J. P. Hunter, the testimony offered was incompetent, under the statute of frauds, to show that Mills, the deceased partner, authorized the sale to Hunter, and that Mills was the party to whom credit was given, and was responsible for the goods sold. (3) His honor erred in charging the jury that there was no proof to sustain the defense that William Mills was responsible to the firm for the goods charged to Hunter. (4) That there was no evidence to sustain the defense, or authorize a verdict for defendant, and that, if they regarded the instructions of the court, to find a verdict for the plaintiff."

The real question, as it seems to us, is whether the circuit judge erred in instructing the jury that the paper set up in the answer of the defendant, and there designated as a release, constituted no defense to this action. It being conceded that the defendant had purchased the goods, as stated in the account sued upon, from the...