46 S.C. 188 | S.C. | 1896
The opinion of the court was delivered by
Abe Herman and Julia Wolfe were married on the 21st of June, 1893, and immediately went to Asheville, N. C. Two days after the marriage, a physician was called to visit Mrs. Herman, and found her suffering with acute mania. Abe Herman returned to Sumter with his wife about the 1st of July, 1893.
Mrs. Herman executed a power of attorney on the 6th of July, 1893, appointing Abe Herman her attorney, with full power to transfer her notes by endorsement, and to conduct a mercantile business for her. Thereafter, upon affidavit of Marion Moise, Esq., proceedings were instituted, which resulted in having Mrs. Herman, on 21st of August, 1893, adjudged insane and sent to the lunatic asylum, where she still remains.
Among the effects of Mrs. Herman was the note in suit in this action, dated 1st July, 1892, for $250, and due 6th November, 1893. On the 12th of August, 1893, Abe Herman transferred this note to the plaintiff, by writing the name of Julia Herman on the back of it. About this time Abe Herman disappeared from the State, and the family have not heard from him since. This action was originally commenced against the Enterprise Building and Eoan Asso
Abe Herman owed the plaintiff $30 when he transferred the note to him; this amount was deducted, and Abe Herman only received $220 in money from the plaintiff. The testimony is conflicting as to what amount, if any, of the $220 was expended by Abe Herman for the benefit of the' mercantile business. Dr. Burroughs, the physician who was called to visit her at Asheville, told her husband that, in.his opinion, she was insane; and advised her husband to have her placed in an asylum for the insane, as the only hope of her recovery. Dr. Burroughs also testified that he did not think Mrs. Herman could have possibly become sane enough to make a binding contract by the 6th of July ensuing, or even by the 1st of August, the time when he was informed she was sent to the asylum.' Testimony was introduced to show that David Wolfe, guardian, under the advice of Marion Moise, Esq., as his attorney, returned the goods to the parties from whom Abe Herman had bought them, as far as possible, and endeavored to repudiate the acts of Abe Herman relative to the mercantile business. Among other things, the presiding judge charged the jury as follows: “What position does Elias, the plaintiff, occupy in this court, if you conclude that this woman was insane at the time she executed this power of attorney? If he had no knowledge of it, and paid his money for the note, and this woman, or her business in Sumter, derived direct or
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the case remanded to that court for a new trial.