Southern States Phosphate Co. v. Arthurs

• Decision Date: 22 April 1914
• Docket Number: 8818.
• Citation: 81 S.E. 663,97 S.C. 358
• Parties: SOUTHERN STATES PHOSPHATE CO. v. ARTHURS.
• Court: South Carolina Supreme Court

81 S.E. 663

97 S.C. 358

SOUTHERN STATES PHOSPHATE CO. v. ARTHURS.

No. 8818.

Supreme Court of South Carolina

April 22, 1914

Appeal from Common Pleas Circuit Court of Aiken County; Geo. W Gage, Judge.

Action by the Southern States Phosphate Company against John T Arthurs. From a judgment for plaintiff, defendant appeals. Reversed.

Hydrick J., dissenting.

G. L. Toole & Son, of Aiken, for appellant.

Gunter & Gyles, of Aiken, for respondent.

GARY C.J.

This is an action on a promisory note, executed by the defendant on the 23d of March, 1908, a copy of which is as follows: "$198.00. On the first day of October next, fixed, I promise to pay to the Southern States Phosphate & Fertilizer Co., or bearer, one hundred and ninety-eight and 00-100 dollars. This note was given for value received in fertilizers furnished by said company, being for (90) ninety sacks of 200 pound each, known as 10 sx Acid 8 X4, 10 Kanit, 20 high grade and 50 sx standard. * * * I hereby acknowledge that at the time of delivery to me, each sack of this fertilizer bore the manufacturer's guaranteed analysis of its contents, and also the inspector's tag, and that in all respects, the laws of the state have been complied with; and that the sellers of these fertilizers, have neither impliedly nor expressly warranted the effects of them on crops, and I therefore agree, that I cannot hold the said Southern States Phosphate & Fertilizer Co. responsible in any way for practical results."

The defendant denied the allegations of the complaint and set up the following as a defense: "The defendant alleges that he did not receive valuable consideration for the note given which was for fertilizers, and that the said fertilizers, bought, did not come up to weigh and guaranteed analysis, and were not actually delivered in kind, according to contract, and that he therefore puts in a counterclaim for damages in the sum of $100."

His honor, the presiding judge, practically ruled that the defendant did not have the right to introduce testimony to sustain the defense interposed by him, on the ground that it would be in violation of the rule that a written instrument cannot be varied or contradicted by parol evidence. The appellant's attorneys thereupon announced that they would consent to a verdict, for the purpose of appealing to the Supreme Court from said ruling.

The case of Publishing Co. v. Gibbes, 59 S.C. 215, 37 S.E. 753, shows that consenting to a verdict under such circumstances is not to be regarded as voluntary, so as to deprive the defendant of his right to review said ruling on appeal.

The contract herein must be construed in connection with chapter 34, art. 1, Code of Laws 1912. Section 2322 thereof is as...