W. Gordon McCabe & Co. v. Colleton Mercantile & Mfg. Co.

• Citation: 90 S.E. 161,106 S.C. 25
• Decision Date: 03 October 1916
• Docket Number: 9350.
• Parties: W. GORDON MCCABE & CO. v. COLLETON MERCANTILE & MFG. CO.
• Court: South Carolina Supreme Court

90 S.E. 161

106 S.C. 25

W. GORDON MCCABE & CO. v. COLLETON MERCANTILE & MFG. CO.

No. 9350.

Supreme Court of South Carolina

October 3, 1916

Appeal from Common Pleas Circuit Court of Colleton County; Ernest Moore, Judge.

Action by W. G. McCabe, Jr., and W. F. Gray, copartners trading under the firm name of W. Gordon McCabe & Co., against the Colleton Mercantile & Manufacturing Company. From an order denying plaintiffs' motions to strike out allegations of the answer and to require it to be made more definite and certain, plaintiff appeals. Order affirmed.

Gary C.J., and Fraser, J., dissenting.

Buist & Buist, of Charleston, and James E. Peurifoy, of Waterboro for appellant.

Howell & Gruber and Padgett & Moorer, all of Waterboro, for respondent.

HYDRICK J.

The question to be decided in this case is whether the issues made by the pleadings are legal or equitable, and, in consequence, triable by a jury or by the court. The pleadings are too long to be reported; but the following statement of the substance of them will be sufficient for the purposes of the case: Plaintiffs allege that they were engaged in buying and selling cotton at Charleston, some of which was for export, and defendant was engaged in buying and selling cotton at Ritters, in Colleton county; that they made a contract with defendant, whereby defendant was to ship cotton to them, which they were to hold in storage for defendant, and advance money thereon to defendant, charging interest at 6 per cent. per annum and 25 cents a bale storage for each month, or fraction thereof, the cotton to be weighed and graded as received, and reports thereof made to defendant; that they were to have the privilege of using the cotton in their business, as they desired, and settle with defendant therefor at such times as defendant might elect at the price prevailing at Charleston at date of settlement such settlements being technically considered as sales to them of so much cotton, or, on payment by defendant of the amount due them for money advanced and storage charges, they were to deliver to defendant as many bales of other cotton as they had used of defendant's cotton and adjust differences in weights and grades according to the price at Charleston at date of settlement, and if, at any time, they thought the amount of cotton to defendant's credit insufficient security for the money advanced, defendant was to cover the deficiency by payment of money or shipment of more cotton, and, on failure to do so, they were to have the right to close the account by settling for the cotton then to the credit of defendant, at the price at Charleston at date of such settlement, and apply the amount to defendant's account; that, under this contract, defendant shipped them 1,443 bales between September 11 and December 24, 1913, and money was advanced thereon and settlements made therefor as per detailed statements attached to the complaint; that on February 8, 1914, believing the cotton then to defendant's credit to be insufficient security for the amount due them, they demanded the payment of money or the shipment of more cotton; that defendant promised to pay $5,000, or to pay the whole amount due, and receive the number of bales not previously settled for, but did neither, whereupon they closed the account by settling for the cotton to defendant's credit on February 10th according to the contract, and rendered a statement thereof to defendant, on February 18th, which showed a balance due them by plaintiff of $4,006.10. The relief prayed for is that an accounting be had between plaintiffs and defendant to be passed upon by the court, and that plaintiffs have judgment against defendant for $4,006.10.

Defendant's version of the contract differs from that of plaintiffs chiefly in the following respects: Defendant says there was to be no charge for storage of cotton for 30 days after receipt thereof, and thereafter the charge was to be 20 cents a bale for each month, or fraction thereof; and, on payment of the amount due plaintiffs, they...