Appeal
from Common Pleas Circuit Court of Richland County; J. H
Hudson, Special Judge.
GARY
A. J.
The
complaint sets forth two causes of action. In the first it is
charged that the plaintiff sold to the defendant 20
bales of cotton between the 1st of January, 1901, and the
20th of April, 1901, aggregating in value $1,027.92; that the
defendant promised to pay plaintiff for said cotton the
amount hereinbefore mentioned, which became due and payable
immediately upon delivery; that at the defendant's
request the cotton was delivered to the Sutro Cotton Mill, at
Yorkville, S.C. The first and second paragraphs
of the second cause of action contain substantially the
allegations set forth in the first cause of action. The third
paragraph of the second cause of action is as follows:
"Third. That defendant did not pay for said cotton, as
he had solemnly promised and engaged to do, on delivery to
said Sutro Cotton Mill, but on the 20th day of April, 1901
thereafter, and at sundry and various times after said
last-mentioned date, the defendant, for the purpose of the
better securing to the plaintiff the agreed price for the
cotton delivered as aforesaid at his request, pledged the
entire product of the Sutro Cotton Mill, consisting of yarns
manufactured and in course of manufacture that had been
turned over to the defendant by said Sutro Cotton Mill as the
property of defendant, for the payment of said debt, and
engaged and promised to sell yarn, collect the proceeds, and
pay over the same to plaintiff; but, notwithstanding his
agreement to hold said yarns and the proceeds to be derived
from their sale in trust for plaintiff, the defendant has
utterly failed and neglected to pay over to plaintiff any
part of the proceeds derived from the sale of the yarns, or
to account as he had promised to do."
The
answer of the defendant was a general denial of the
allegations contained in both causes of action. The jury
rendered a verdict in favor of the defendant, and the
plaintiff appealed.
The
first exception is as follows: "For that his honor,
having first incorrectly instructed the jury that the sole
issue raised by the first cause of action stated in
plaintiff's complaint, and the denial thereof by
defendant, is that plaintiff sues to recover of defendant
$1,027.92, the price of twenty bales of cotton sold and
delivered to defendant between January 1, 1901, and April 20,
1901; that plaintiff's claim and the action brought by
him against W. H. Lyles is for goods sold and delivered to
him; and that such action can only be sustained by the proof
of the sale and delivery of the cotton to W. H. Lyles--next
proceeded to invade the province of the jury, and charged the
jury in respect to matters of fact, as follows:
'The testimony has been conflicting. You have heard the
testimony of the plaintiff in that behalf, and the testimony
of the defendant; and the testimony of the plaintiff in that
behalf is that the cotton was sold; negotiations made with
one Walton Neil, who was secretary of a certain cotton
mill--the Sutro Cotton Mill'--in violation of article 5,
§ 26, of the Constitution of South Carolina, A. D.
1895." In the first place, the facts stated by his honor
the presiding judge were not in dispute; and, in the second
place, they were not prejudicial to the plaintiff, when
considered in connection with the language immediately
following, which was as follows: "Now, was Mr. Neil the
bona fide, lawfully constituted agent of Mr. Lyles, and
bought the cotton for Mr. Lyles, and did he, as duly
authorized agent for Mr. Lyles, buy the cotton and have it
delivered to or for Mr. Lyles? Now, whether he was that agent
or not, in the proper sense of the word--duly authorized,
duly constituted, as agent, to buy that cotton for Mr.
Lyles--is a question of fact for you, and you must determine
that from the testimony; and you have heard the witnesses
speak on that subject on behalf of the plaintiff and the
witnesses for the defendant, and there is a conflict in the
testimony, and you have got to determine from all the
surroundings and from all testimony whether that is a fact or
not."
The
second exception is as follows: "For that his honor, in
charging the jury: 'Now, gentlemen, the question is not
whether Mr. Turner ought to be paid for his cotton or not--
If we could decide questions, issues, upon that line, why
every man ought to be paid for his property when he sells it.
That is not the question here. The question here is not the
extent of interest of Mr. Lyles or any one else in the cotton
mill. That is not the question here. You must exclude every
matter except the one in issue here. The allegation on the
one hand is that this cotton was sold and delivered to Mr.
Lyles, and that is denied on the other side'--erred: (a)
Because by so charging his honor took entirely from the
consideration of the jury the question whether
there was or was not a new consideration moving to the
alleged promisor, the defendant, in the light of the
undisputed proof that, at the date of the sale of the cotton
and delivery of the same on order of defendant to Sutro
Cotton Mill, the defendant owned 499 out of a total of 500
shares of the stock of said mill, and that, in purchasing the
twenty bales of cotton to prevent the mill from closing down,
he was subserving his own vital interests. (b) Because his
honor erred in not charging the jury, as requested by
plaintiff's counsel, as a sound proposition of law
applicable to the case, the following request to charge:
"Whenever the main purpose and object of the promisor is
not to answer for another, but to subserve some purpose of
his own, his promise is not within the statute of frauds,
although it may be in form a promise to pay the debt of
another.' (c) Because his honor erred further in
incorrectly stating to the jury the issues raised by the
pleadings as to the first cause of action, and in restricting
the jury to the consideration of a single issue--as to
whether the cotton was sold and delivered to W. H. Lyles.
Subdivision
"a." Even if the cotton was sold to the Sutro
Cotton Mill, and the defendant promised to pay the plaintiff
for it, the
fact that he owned the stock mentioned in the exception would
not constitute a new consideration.
Subdivision
"b." In the case of Robertson v. Hunter,
29 S.C. 9, 6 S.E. 850, it was contended that, where a person
promises to pay for goods sold and delivered to another, the
statute of frauds will not apply, if it appears that the
promisor has some interest in, or expects to derive a benefit
from, such sale and delivery. After stating certain reasons
why the proposition was not applicable to the case then under
consideration, the court uses this language: ""To
avoid misapprehension, however, we do not wish to be
understood as giving even an implied assent to the rule as
stated for appellant. On the contrary, we think the rule is
more correctly stated in 3 Parsons on Contracts, 24, in these
words: ' Wherever the main purpose and
object of the promisor is not to answer for another, but to
subserve some purpose of his own, his promise is not within
the statute, although it may be in form a promise to pay the
debt of another;' and the illustration usually given is
where a creditor has a lien on certain property of his
debtor, to the amount of his debt, and a third person, who
also has an interest in the same property, promises the
creditor to pay the debt in consideration of the
creditor's relinquishing his lien. So that the test is
whether there is a new consideration moving to the promisor.
This is shown by the case of Hindman v. Langford, 3
Strob. 207, cited by the appellant, where the promise to
pay the debt of another was supported because it rested upon
a new consideration moving to the promisor, to wit, the
surrender to him of a bale of cotton which had been placed in
the hands of the creditor to meet the original debt. In the
present case, however, there was not the slightest evidence
of any new consideration moving to Miller, and hence the rule
invoked does not apply." The appellant's request was
properly refused, because there was no testimony tending to
show a new consideration to which it was applicable.
Su...
