Sullivan Hardware Co v. Wash.

• Decision Date: 16 July 1896
• Citation: 25 S.E. 45,47 S.C. 187
• Parties: SULLIVAN HARDWARE CO. v. WASHINGTON et al.
• Court: South Carolina Supreme Court

47 S.C. 187

25 S.E. 45

SULLIVAN HARDWARE CO.

v.WASHINGTON et al.

Supreme Court of South Carolina.

July 16, 1896.

Right to Jury Trial—Counterclaim. In a suit to foreclose a mortgage given to secure the purchase price of machinery, defendant is not entitled to a trial by jury on a counterclaim for damages arising from a breach of warranty.

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

Action by the Sullivan Hardware Company against J. W. Washington and others. From an order overruling defendants' motion to transfer the case for trial by jury, they appeal. Affirmed.

Ferguson & Featherstone, for appellants.

Johnson & Richey, for respondents.

McIVER, C. J. This was an action to foreclose a mortgage on certain machinery, given to secure the payment of the sum of money mentioned in a note given for the purchase money of such machinery. The defenses set up in the answer were failure of consideration, and breach of the warranty that such machinery was sound and suitable for the purpose for which it was purchased by defendants. The defendants also pleaded a counterclaim for damages sustained byreason of the failure of the machinery to come up to the warranty, whereby defendants lost time and business, consequent upon such breach of warranty. To this counterclaim, plaintiffs replied, denying the allegations upon which it was based. The case was docketed on calendar 2, and when called for trial by his honor, Judge Townsend, the defendants claimed that they were entitled to a jury trial of the issues raised by their counterclaim, and moved that the case be transferred to calendar 1, for the trial of such issues. This motion was refused, and defendants appeal, imputing error to the circuit judge in refusing this motion. So that the single question presented by this appeal is whether the defendants, in a ease like this, were entitled to a trial by jury of the issues presented by their counterclaim.

Appellants base their claim upon the ground that a counterclaim is, in effect, a complaint for the recovery of the money alleged therein to be due, and is in the nature of a cross action, and, thus being an action for the recovery of money, must be tried by a jury, unless a jury trial be waived. Section 274 of the Code. It seems to us that the question thus presented is so conclusively determined by the recent case of McLaurin v. Hodges, 43 S. C. 187, 20 S. E. 993, as to obviate the necessity of further discussion. In that case the plaintiff...