47 S.C. 229 | S.C. | 1896
The opinion of the Court was delivered by
This action was commenced in the Court of Common Pleas for Sumter County, in this State, on. the 21st day of December, 1895, and its object was to recover a mare and colt alleged to have been wrongfully detained from the plaintiff by the defendant, and for damages. It came on for trial before his Honor, Judge Buchanan, and a jury. The verdict was for the plaintiff, and after entry of judgment thereon, an appeal was taken therefrom. Quite a number of interesting questions were presented and argued before us; but we haye concluded that there is one all controlling question here, which we have concluded will render unnecessary the consideration of all the other matters embraced in the appeal — indeed, when we settle this question, no other can be said to fairly arise in the record.
It seems that the plaintiff here made an agreement with one Mr. Henry Tupper, of Charleston, in this State, which was finally embodied in this written agreement, to wit: “October 2d, 1894. • This is to certify that J. H. Kirven and Henry Tupper have traded the following mares, ‘Brown
One of. the- defenses set up by the defendants is that “Daisy” never became the property of Mr. Kirven; that the agreement between Mr. Kirven and Mr. Tupper was only for an exchange of mares but was never executed; and that the only remedy Mr. Kirven had was to sue Mr. Tupper for a breach of his contract; and that Kirven never owned or had a lien on the mare, “Daisy,” and, therefore, the defendant Pinckney had a perfect right to buy her as he did. We cannot regard this as a sale of the mare, “Daisy,” to Mr. Kirven. The contract shows that it was to be an exchange' of one mare for the other, with $25 as “boot.” This exchange was never consummated. If the contract was breached by Tupper, Kirven had his remedy by bringing his action against Tupper for such breach of his contract. We cannot view this contract as executed by its terms so that “Brown Girl” was Tupper’s property and “Daisy” was the property of Kirven. Each had to deliver his mare to the other, respectively, before the rights of third parties could be affected. Whatever remedy Mr. Kirven has, is against Mr. Tupper. The defendant by his second request to charge made this point, and the Circuit Judge refused such request to charge. This was error. The defendant, on the same ground, sought a nonsuit; this was refused by the Circuit Judge, and thereby the Circuit Judge was again in error.'
We must, therefore, reverse the judgment and direct that the complaint be dismissed.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the cause be remitted to the Circuit Court with directions to that Court to dismiss the complaint.