Swift & Co. v. Griggs

• Decision Date: 04 August 1959
• Docket Number: No. 17561,17561
• Citation: 109 S.E.2d 710,235 S.C. 60
• Court: South Carolina Supreme Court
• Parties: SWIFT & COMPANY, Plaintiff-Respondent, v. H. H. GRIGGS, Azelea R. Griggs and J. C. Griggs, Defendants-Appellants.

Page 710

109 S.E.2d 710

235 S.C. 60

SWIFT & COMPANY, Plaintiff-Respondent, v. H. H. GRIGGS, Azelea R. Griggs and J. C. Griggs,

Defendants-Appellants.

No. 17561.

Supreme Court of South Carolina.

Aug. 4, 1959.

John P. Gardner, Darlington, for appellants.

Stuckey & Stuckey, Bishopville, Paulling & James, Darlington, for respondent.

TAYLOR, Justice.

This appeal arises out of an action brought by respondent, Swift & Company, (hereinafter referred to as plaintiff) against appellants, H. H. Griggs, Azelea R. Griggs and J. C. Griggs (hereinafter referred to as defendants) in the Court of Common Pleas of Darlington County.

The complaint alleges, inter alia, that H. H. Griggs and Azelea R. Griggs, on November 27, 1956, entered into a written agreement with plaintiff providing that said defendants would sell plaintiff's plant food on a commission basis, would obtain cash or notes from purchasers, and guaranteed payment of all accounts to plaintiff from sales; that J. C. Griggs on November 30, 1956, agreed in writing to guarantee performance of the aforementioned agreement of H. H. Griggs and Azelea R. Griggs and to guarantee payment of said accounts; that subsequently plaintiff delivered plant foods to H. H. Griggs and Azelea R. Griggs in the amount of $26,875.58, for which amount H. H. Griggs, in accordance with said agreement, delivered his note to plaintiff dated July 26, 1957; and that H. H. Griggs and Azelea R. Griggs on June 6, 1957, entered into an agreement similar to that of November 27, 1956, to sell plaintiff's insecticides, delivery of which was made by plaintiff to H. H. Griggs and Azelea R. Griggs. The complaint further alleges that defendants have paid to plaintiff, or been given credit for, certain sums, and judgment is demanded against defendants for balances alleged to be due plaintiff under said two agreements, the guaranty of J. C. Griggs, and the note.

By the first defense of their amended answer, defendants enter a general denial. By the second defense they allege, inter alia, an oral offer made by an alleged agent of plaintiff to defendants on or about November 1, 1956; that said offer was the consideration for the signing by defendants of the instruments referred to in the complaint; and that plaintiff had failed to perform the promises so made to defendants. By the third defense, defendants deny delivery to them to the plant foods and insecticides and allege that they were paid no consideration for the note referred to in the complaint except plaintiff's promises referred to in the second defense.

Plaintiff moved at chambers before Honorable J. Woodrow Lewis, Resident Judge of the Fourth Judicial Circuit, (1) to strike the second defense of the amended answer on the grounds that it is sham, irrelevant and redundant and attempts to vary by parol testimony the terms of written instruments under seal, and (2) to strike the portion of the third defense of the amended answer which alleges want of consideration for the note on the grounds that a sealed instrument voluntarily entered into and with no pretense of fraud cannot be impeached for want of consideration. Plaintiff also demurred to the second defense of the amended answer as failing to state facts sufficient to constitute a defense.

The order of Judge Lewis from which appeal is taken, struck from defendant's answer the words 'said defendants allege that they never were paid any consideration for the notes referred to in plaintiff's complaint except the promises made by plaintiff as hereinabove set forth' of paragraph one of the third defense and the entire second defense which appears as follows:

'1. That on or about the 1st day of November, 1956, one, Thomas J. Sansbury, and one, W. H. Lee, called on the defendants and made this offer: that the said W. H. Lee was an agent of the plaintiff herein and that the plaintiff was desirous of putting Thomas J. Sansbury in business as a fertilizer dealer in Darlington, South Carolina, and that if the defendants would sign the papers referred to in paragraph who, paragraph five and paragraph eight of the first cause of action in plaintiff's complaint and paragraph one of the second cause of action alleged in plaintiff's complaint, that plaintiff would put the said Thomas J. Sansbury in business as fertilizer dealer, would approve each account before the delivery of fertilizer, would collect all open and secured accounts, would supervise the general operation of said business, would not approve or allow the said Thomas J. Sansbury to sell any fertilizer except to financially responsible people, would put the said Thomas J. Sansbury on his feet financially speaking by allowing him a ten per cent. commission on mixed fertilizer and a five per...