39 S.C. 1 | S.C. | 1893
The opinion of the court was delivered by
The plaintiffs brought this action to recover the sum of one hundred and twenty-eight 43-100 dollars, alleged to be due to them by the defendant on an account for goods, wares and merchandise sold and delivered by them to him. The defendant by his answer denies'that he is indebted in the amount claimed, but admits that he is indebted to the plaintiffs on said account in the snm of one hundred and twenty-three 93-100 dollars, which he alleges is the correct amount of the account, and avers his willingness to pay the same. For a first defence, he pleads a tender, before action commenced, of the amount thus admitted to be due, and a refusal by plaintiffs to accept the amount so tendered. For a second defence, he pleads that after the refusal of said tender, and before the action was commenced, the plaintiffs, in writing, offered to accept the amount so tendered in payment of said account, and that thereupon the defendant again tendered said amount, when plaintiffs refused to accept the same in payment of the account.
It seems that the only dispute between the parties was as to a single item in the account, for a roll of bagging amounting to the sum of $4.50, charged in the account, set out in the “Case,” on the 28th of October, 1890, which the defendant alleged that he had never ordered or received, though he does admit that the partnership of Crawford & Co., composed of himself aud his son, David A. Crawford, did get a roll of bagging from the plaintiffs, which, however, they paid for. There was a conflict of testimony as to whether the bagging in dispute was sold to the defendant individually, or to Crawford & Co. through the son David, and the defendant offered in evidence an account against Crawford & Co., on which appears a charge, on the 13th of September, 1890, for fifty yards of bagging, $4.65, which was receipted in full by the plaintiffs on the 26th of November, 1890. It.appears in testimony that the firm of Crawford & Co. was dissolved on the first of January, 1891, when
The Circuit Judge, in his charge, instructed the jury that the complaint stated a cause of action against the defendant individually, and if he desired to interpose as a defence that his indebtedness was not as au individual but as a member of a firm, he should have done so either by demurrer, if that fact appeared in the complaint, or, if it did not so appear, by answer; and not having done either, he had waived any defence upon the ground of defect of parties. In regard to the defence of tender, the jury were instructed that inasmuch as the claim sued upon was not an interest-bearing demand, that matter could not enter into their consideration; for the only effect of such a defence, if established, would be to stop interest and to deprive the plaintiffs of the right to costs; and hence as the claim did nob bear interest anyhow, and the jury had nothing to do with the costs, they need not consider the question whether a tender was made. He, therefore, instructed the jury that the only question for them to decide was whether the defendant owed the plaintiffs the whole amount of the account or only the amount admitted to be due. Under this charge the jury rendered a verdict for the whole amount of the account, and judgment having been entered thereon, defendant appealed upon the several grounds set out in the record.
It appears in the “Case” that after the appeal was taken, respondents, while still asserting their right to recover the amount of the disputed item of the account, offered in writing, with a view to avoid further litigation, to remit on the record the sum of four 50-100 dollars. To this offer defendant replied, saying, that if plaintiffs would pay all the costs which had accrued, and also remit the said sum of $4.50, he would at once pay the amount which he admitted to be due. Plaintiffs replied, refusing to accept said terms, as they did not consider themselves liable for the costs, in any view of the case. This offer was probably made with a view to afford a ground for dismissing the appeal under the case of York County v. Fewell, 21 S. C., 108. But as we have considered and decided this case upon the merits, we see no occasion to consider this additional matter incorporated in the “Case” by amendment.
The judgment of this court is, that the judgment ef the Circuit Court be affirmed.
2 Greenl. Evict, § 605; 2 Pars. Cont., *644.