Travers v. Jennings
| Decision Date | 24 July 1893 |
| Parties | TRAVERS v. JENNINGS et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Greenville county; James Aldrich, Judge.
Action by S.W. Travers against W. A. Jennings and others on certain promissory notes and a contract relating to the sale of certain fertilizers, and for an accounting. From a judgment for plaintiff, defendants appeal. Reversed.
Perry & Heyward, John R. Bellinger, and G. W. Dillard, for appellants.
Earle Orr & Mooney, for respondent.
S. W Travers, of Richmond, Va., dealing in commercial fertilizers had shipped $1,702 of fertilizers to W. A. Jennings, J. S Setzer, James A. Thomasson, and John H. Austin, doing business as merchants in the city of Greenville, S. C., under the firm name of Jennings, Setzer & Co., in the early months of 1891, in pursuance of a contract for that purpose between such parties. Two notes, each for $851, maturing respectively, the 1st and 15th days of December, 1891, were executed by such firm to the plaintiff, Travers, therefor. J. S. Setzer retired from said firm, say, on the 14th April, 1891, the remaining partners assuming all the liabilities of the firm of Jennings, Setzer & Co. The firm assumed the name of Jennings & Co. Default was made in the payment of the two notes as they matured, respectively. An assignment was made by Jennings & Co. The contention between the parties to this suit does not arise as to the debt represented by the two notes, but grows out of a palpable contradiction between the parties as to the contract in relation to the commercial fertilizers shipped by the plaintiff to the defendants; it being alleged by Travers, the plaintiff, that all moneys for which such fertilizers should be sold by the firm, and all notes and securities taken when sales were made on a credit, should be the property of Travers until said notes of the firm were fully paid, and that such evidences of indebtedness should be held by said firm, in trust, to collect and pay the same to Travers, the plaintiff, until the firm's two notes were paid, and that the terms of such contract were evidenced by a writing entered into on the 21st January, 1891, and signed by both the plaintiff and defendants. On the contrary, it was alleged by the members of the firm of Jennings & Co. that such paper writing was signed by Setzer against the express agreement of the partners composing the firm of Jennings & Co., made with the plaintiff, which was well known by the plaintiff, and that the express agreement for such purchase was an out and out purchase on a credit, as represented by the two notes due on 1st December and 15th December, 1891, respectively, and that such sale by the plaintiff was an unconditional one. Testimony by commission was taken of S.W. Travers and E. Thomas Orgain, witnesses residing in Richmond, Va., and in that city, under the act of the general assembly of this state. 18 St. at Large, pp. 373-375. When this testimony was offered its reception was objected to because the envelope was not sealed with the seal of the notary public before whom it was taken, and who had forwarded the same by mail. The circuit judge (Judge James Aldrich) admitted the testimony. Quite a number of witnesses were examined. After a verdict of the jury upon the two issues submitted to them, the circuit judge filed a decree in favor of the plaintiff on every issue. The three defendants, Jennings, Thomasson, and Austin, now appeal on six grounds, but as, in the view of this court, it will be only proper for us to pass on one, we will not reproduce any others: "(1) That his honor, the circuit judge, erred in admitting in evidence, against the objection of defendants, the testimony of Travers and Orgain, taken before a notary public in Richmond, Va.; the envelope containing the same not being sealed with the seal of the notary, as required by law." The description of the facts connected with the envelope and its contents, as taken from the case itself, is as follows: ...
To continue reading
Request your trial