69 S.E. 390 | S.C. | 1910
Lead Opinion
November 29, 1910. The opinion of the Court was delivered by *268 The plaintiff sued defendant before a magistrate for the price of a lot of leather goods of the value of $56.25, alleged to have been sold him by plaintiff on December 3, 1907. The magistrate rendered judgment against defendant for the amount of $7.50, which defendant admitted to be due, but on appeal to the Circuit Court, Judge Memminger upon the evidence reversed the judgment of the magistrate and gave judgment for plaintiff for the full amount claimed.
On November 30, 1907, defendant ordered plaintiff to ship on "memorandum" invoice a lot of leather goods, stating that he would return those not wanted. The goods were shipped on December 3, 1907, and were received by defendant on December 7, 1907. On December 12, 1907, plaintiff wrote defendant a letter, which was stamped and deposited in the postoffice properly addressed, stating that on December 17, 1907, regular bill for goods would be issued and all goods kept to that time would be charged to defendant's account and could not be credited after that date. Defendant testified that he did not receive this letter, and received no request to report, that it was the custom with this class of goods received on memorandum to keep them thirty days unless otherwise stipulated and the goods are returned when they write you, that it is no sale unless you receive a regular bill. On January 13, 1908, defendant made report on the memorandum of December 3, 1907, and deposited the goods in the express office for return to plaintiff, except one article which defendant had sold for $7.50. In a prior transaction between the parties goods shipped on memorandum were returned within five days except such as were kept and paid for. Plaintiff contended in its further correspondence with defendant that the goods were shipped on ten days memorandum and defendant contended that there was no specification of time in which to report.
On appeal from the magistrate plaintiff asked for reversal and new trial on the ground that the verdict was *269 contrary to the preponderance of the evidence and that the magistrate and jury should have found that the defendant had only a reasonable time within which to return the goods and that he did not exercise his option within a reasonable time. The Circuit Court held that the verdict and judgment were against the weight of the evidence and as stated gave judgment for plaintiff for the full amount claimed.
Defendant-appellant now contends that the Circuit Court erred in granting more relief than the exceptions to the judgment of the magistrate asked for, and in the event of reversal and a new trial the Court should have ordered a new trial before the magistrate and not have rendered final judgment upon the facts. We do not think that the fact that the exceptions to the magistrate's judgment asked for a new trial operates to restrict the power of the Circuit Court to ordering a new trial before the magistrate. The case of Widemanv. Patton,
The Constitution and statutes place no restriction upon the Circuit Court in hearing appeals from magistrates on questions of fact. Redfern v. Douglas,
The judgment of the Circuit Court is affirmed.
November 29, 1910.
Addendum
Upon consideration the within petition is dismissed and the stay of remittitur revoked.
