Talbott v. Padgett

• Decision Date: 18 February 1889
• Citation: 8 S.E. 845,30 S.C. 167
• Court: South Carolina Supreme Court
• Parties: Talbott et al. v. Padgett.

8 S.E. 845

(30 S.C. 167)

Talbott et al.

v.Padgett.

Supreme Court of South Carolina

February 18, 1889

1. Replevin—Pleading—Answer.

Where a vendor sues to recover the possession of property sold under a contract by which, in case the notes given for the price were not paid, the vendor was to be entitled to the possession of the property at any time after the maturity of the notes, the vendee having made default in such payment, the answer of the latter that the instrument of sale is a mortgage, and that he is entitled to an accounting to show how much is due under it, in order that he may redeem the property, states merely legal conclusions, and is demurrable as not showing a sufficient defense.

2. Same—Counter-Claim for Damages.

A counter-claim that the defendant had suffered damage from the violation by the vendor of covenants made by him on the sale of the property cannot be interposed in such action.

Appeal from common pleas circuit court of Colleton county; Norton, Judge.

Action by Talbott & Sons against Daniel Padgett. A demurrer to the answer of the defendant was sustained, and he appeals.

Fishburnt & Tracy, for appellant. Howell, Murphy & Farrow, for respondents.

Simpson, C. J. On or about the 15th of September, 1883, the defendant was placed in possession by the plaintiffs (respondents) of a certain 14-horse-power stationary engine, locomotive boiler, and other machinery, under an agreement of which a copy is hereto appended:

"agreement.

"An agreement made and entered into by and between Talbott & Sons of the city of Richmond, state of Virginia, of the one part, and Daniel Padgett, of Smoaks, S. C, of the second part, witnesseth: That the said Talbott & Sons agree to furnish said Daniel Padgett the following articles, viz.: One (1) fourteen (14) horse-power standard stationary engine and locomotive boiler, steam-gauge, whistle, governor, water-gauge, stack, etc., complete; one 36 corn-mill; fifty saw Winship gin and condenser; and one Acme cotton-press, with pulley and belt, —to be ready for delivery on car at Branchville, S. C., on or about the 15th of September, 1883, for the consideration of the payment of seventeen hundred and ninety dollars, as follows: One hundred dollars ($100) cash in hand, the receipt whereof is hereby acknowledged, upon delivery of machinery; four hundred and ninety-seven ($497) dollars, 1st November, 1883; five hundred and ninety-seven ($597) dollars, 1st February, 1884; and five hundred and ninety-six dollars, ($596,) 1st May, 1884; with privilege ofextension of time on last note. Notes to bear date of bill of lading, with 7 per cent. interest added. The condition of the above contract is that the legal title and right of property in and to the above-described property is to remain and be vested in Talbott & Sons, of Richmond, Va., until the said notes and all interest thereon accrued is paid off; and in case the said Daniel Padgett should fail to pay off the said notes, or either of them, then it shall be lawful for the said Talbott & Sons of Richmond, Va., to take possession of the said property at any time after the maturity of the said notes, or either of them; but in case the said notes are paid off, then the title to the said property to to vest in Daniel Padgett. Talbott & Sons warrant the above-described machinery to be of good material and workmanship, and to perform in a satisfactory manner, when properly used; also are to send man to superintend setting up and starting of machinery free of charge. It is understood that no verbal understanding or warranty of any kind exists in regard to the present contract other than what is herein expressly stated.

"In witness whereof the parties have set their hands, this 5th day of September, A. D. 1883. Talbott & Sons,

"Per Wm. C. Morgan, Manager.

"Daniel Padgett.

"Shipping point: Branchville, S. C. "

The defendant made default in the payment of the notes specified, and the action below was brought to recover the possession of said property, the return of which had been denied on demand. The defendant interposed three defenses: "First. A general denial of all allegations not admitted, and admitting several allegations not necessary to be mentioned here. Second. That the contract or agreement set out in the complaint is an instrument in the nature of a mortgage, and that this defendant is entitled to an accounting for the amounts still actually due thereon, and may redeem such property, upon the payment of such amount, and expenses; or to have the same sold, and the proceeds applied as above, the surplus to be returned to him. " For a third defense and as a counter-claim: "(1) That, as alleged in paragraph 3 of the complaint, the plaintiffs and the defendant entered into a contract or agreement relative to the chattels herein sought to be recovered, and others therein mentioned. (2) That in such contract were mutual covenants and agreements, and that plaintiffs have failed to perform their part of the same, whereby defendant has been injured to his damage one thousand dollars; wherefore judgment was demanded, " etc. To these last defenses the plaintiffs interposed an oral demurrer on the call of the cause, having previously filed a reply to the third defense. The grounds of the demurrer were: "(1) That sufficient facts to constitute a defense were not interposed by...