49 S.C. 454 | S.C. | 1897
The opinion of the Court was delivered by
The plaintiff brings this action, alleging in his complaint: “1. That on the day of November, 1891, the plaintiff was the owner, and entitled to the possession, of two bales of middling lint cotton, aggregating 900 pounds, and of the value of $75. 2. That on the said day of November, 1891, the defendant, then being in possession of the said cotton, unlawfully disposed of the same, and has since, upon demand, refused to deliver the same to the plaintiff, or pay him the value thereof, to his damage $100.”
The defendant, in his answer, denies the allegations of the complaint, and sets up as a defense that he had no notice of the plaintiff’s rights at the time he turned the cotton over to his sister, Mrs. Charles.
On the 4th of December, 1890, an agreement was entered into between W. H. Charles and B. F. Thompson, whereby the said Charles leased to the said Thompson, for the year 1891, the tract of land upon which the cotton in dispute was produced. The said Thompson agreed to pay as rent for said land 900 pounds of lint cotton, which was to be delivered to the defendant, J. L,. French, for the said Charles. On the 4th of December, 1890, Charles, for value, assigned the said contract to the plaintiff, B. M. McGee. The cotton was delivered to the defendant, who in turn delivered it to Mrs. Charles, his sister. The cotton was afterwards sold.
The case was tried before his Honor, Judge Benet, at the November (1895) term of the Court. The jury rendered a verdict in favor of the defendant.
The sixth exception is as follows; “6. In refusing plaintiff’s motion for a new trial, it appearing from an inspection of the record that there was an entire absence of testimony to sustain the verdict, and that said verdict was not responsive to the charge of the Court.” The verdict in this case was in favor of the defendant, and it cannot be said that there was an entire absence of testimony to sustain it, as the jury may not have believed the testimony of the witnesses for the plaintiff. Quite a different question, however, would be presented if the jury had found a verdict in favor of the plaintiff, and a motion for a new trial had been made on the ground that there was an entire absence of testimony to sustain it. This exception is also overruled.