45 S.C. 111 | S.C. | 1895
The opinion of the court was delivered by
The defendant, under her hand and seal, on the 25th day of June, 1886, executed a lease of “one Packard organ, style 18, No. 2507,” for the term of twenty-two months, at a rental of $5, to be paid on the 25th of each of the twenty-two months, with a proviso in said lease that the said defendant “may at any time within said term of rental, purchase the said instrument by paying the above valuation ($115) therefor; and then, and in that case only, all amounts theretofore paid as rental or advance deposit shall be deducted from the price of the instrument.” Thereafter from month to month the defendant paid to said plaintiff the sum of $5, until her payments aggregated $65; she then refused to pay anything more to plaintiff, and refused to turn over such Packard organ to plaintiff. Thereupon the plaintiff, on the 2d of March, 1893, commenced this action for claim and delivery. In the complaint the fore: going facts are set forth. By the answer of defendant she admits the execution of the paper writing under her hand and seal, as alleged by the plaintiff, but as an affirmative defense, she alleges, that immediately after she made her ‘last payment of $5 (which occurred on the 30th November, 1887), she learned that the assurance made to the defendant on the day she executed the agreement, to wit: 25th day of June, 1886, by the plaintiff, its agent and servants, that thé organ in question was new and had never been in use, and that it was in first class condition, was fraudulently made to her; whereas, the truth was, that such instrument, instead of being new and never haying been in use, and in first class condition, was an old one, which had been out of plaintiff’s possession under a similar agreement made to the plaintiff
When the cause came on to be heard before said master, the plaintiff demurred to the answer, because it failed to set forth facts sufficient to constitute a defense. This demurrer was eventually sustained by the master, and he recommended, amongst other things, that plaintiff have all the relief demanded in its complaint. To this report the defendant excepted, and when the same was brought on for trial before his Honor, Judge Benet, he reversed the master’s report, and ordered the case back to the master for a trial.
From Judge Beliefs order the plaintiff now appeals to this Court. Bet the order and the exceptions be set out in the report of the case.
We do not feel that any further discussion by us is necessary. The Circuit Judge was correct in overruling the demurrer and ordering the cause back for trial.
It is the judgment of this Court, that the order appealed from be affirmed, and the case is remanded to the Circuit Court to carry out Judge Benet’s order.