39 S.C. 69 | S.C. | 1893
The opinion of the court was delivered by
This action was brought by the Durham Fertilizer Company, a corporation of North Carolina, against J. N. Pagett, upon a promissory note, of date May 1, 1891, for the sum of $723.84, executed by the said Pagett, and payable to the order of the company, on November 1, 1891. The note was given for twenty-four (24) tons of a fertilizer known as “Peruvian Substitute.” The defendant in his answer denied the “incorporation” of the plaintiffs, and each and every other allegation of the complaint; and for a second defence pleaded failure of consideration of the note sued on. The cause came on for trial before Judge Izlar and a jury; and after much testimony was heard pro and con, upon the only issue made by the pleadings, viz: the character and value of the article purchased, as a fertilizer, the jury found a verdict for the plaintiff.for the full amount of the note and interest.
The defendant appeals to this court upon six exceptions, of which the two last are abandoned, leaving four, as follows: 1. Because his honor erred in charging the jury, that the most important requirements of the statute would be complied with, if the label or stamp contained the name, location and trademark of the manufacturer, the chemical composition of the contents of such package, and the real per centage of the ingredients. 2. Because his honor erred in charging the jury, that he did not think the mere absence of the date of the analysis would so far invalidate the contract as to prevent the plaintiff from recovering in this action. 3. Because his honor erred in charging the jury, that the results of the crop of the defendant could not be taken by them as “conclusive evidence” of the fact that this fertilizer was a worthless article. 4, Because his honor erred in charging the jury, that while the fertilizer might have contained the analysis placed upon
It seems to us, however, that the onus was upon the defendant, especially after all the other requirements were shown by express proof to have been complied with, to show that the date was not on the sacks, which was not done. “Illegality of a contract can not be inferred; the burden is on the party making the objection, to establish it clearly.” Chit. Con., 659. What the judge said in reference to the probable effect, if the date alone were missing, was merely hypothetical, and really did not indicate his opinion on the subject. He left the question fairly to the jury, as follows: “The question whether these requirements of the statute have been complied with, is a question of fact to be determined by you from the testimony. And here I would say, that you are to determine all the facts arising in this case; it is peculiarly your province, a province which the court can not invade, and I do not desire that you should, in your consideration, take any thing I may say in my charge to yon as intimating any opinion whatever in regard to the
The charge complained of in this case was as follows: “I charge you that the results of the crop can not be taken by you as conclusive evidence that this fertilizer was worthless. Whilst it might have contained the analysis placed upon the bag, the results of the crops depend upon various other matters — upon the nature of the soil, the seasons and the working of the crop,
The judgment of this court is, that the judgment of the Circuit Court be affirmed.