7059 | S.C. | Nov 16, 1908
Lead Opinion
November 16, 1908. The opinion of the Court was delivered by The above stated case came on for trial at the October term, 1907, of the Court of Common Pleas for Abbeville county, before his Honor, Ernest Gary, and a jury. The following is the complaint:
"The complaint of the plaintiff above named respectfully shows:
I. "That on the 5th day of September, 1905, United Jewelers Manufacturing Company made their bill of exchange, in writing, dated on that day, directed to the defendant, A.M. Erwin, and thereby required the said defendant to pay to the order of the said United Jewelers Manufacturing Company eighteen and 75-100 dollars, two months after the said date, for value received.
II. "That thereupon, on the day of September, 1905, at Antreville, the said defendant, upon sight, accepted the said bill.
III. "That thereafter, and before the maturity of the said bill, the same was for value received, duly assigned and transferred to the plaintiff, J.C. Stouffer; that no part thereof has been paid, and the plaintiff is still the owner and holder thereof."
The second cause of action is exactly the same as the first, except the maturity of the draft, which was four months after date.
The third cause of action is the same, except the maturity, which was six months after date.
The fourth cause of action is exactly as the foregoing, except the maturity was eight months after date.
The defendant, answering the complaint, alleges:
I. "That he admits the making and acceptance of the four bills of exchange mentioned in the said complaint. That he denies each and every other allegation of the complaint herein, except that no part of said bills have been paid. *551
"For a defense to the whole cause of action alleged and set forth in the complaint, this defendant alleges:
II. "That the consideration of the said four bills of exchange was a contract made by the defendant and the United Jewelry Manufacturing Company, by which said company agreed to sell, and did sell, to the defendant a lot of jewelry, represented by said manufacturing company to be of sterling silver, rolled goldplate, gold front and gold filed, and oxidized finished goods.
III. "That the said goods or jewelry failed to come up to the guarantee and warranty of said manufacturing company, and said goods were nothing but brass, of the cheapest quality, and absolutely worthless to this defendant or to any one else. That the defendant sold some of the goods, but they were returned to the defendant, and defendant had to return to the purchaser the price paid him for said goods
IV. "That said goods were not as represented by the salesman selling the same, and not such goods as called for in the contract, and the same were and are utterly worthless.
"For a further defense to said alleged cause of action, the defendant alleges:
V. "That the said J.C. Stouffer, the plaintiff herein, is not the owner and holder of the said bills of exchange, but is simply put forward by the United Jewelry Manufacturing Company as a blind to prevent the defendant from pleading failure and want of consideration, and to try to shut off the defense of the defendant by claiming that said Stouffer is the holder of negotiable paper passed to him before it was due, when, as a matter of fact, said bills of exchange were never turned over to the plaintiff until after they were due, and were then turned over to him solely for the purpose of shutting out this defendant's defense to said bills of exchange."
Testimony was offered on both sides, and, after the charge of his Honor, the jury rendered a verdict in favor of the defendant. A motion was made for a new trial, which was *552 refused by the presiding Judge. The plaintiff now appeals to this Court upon fifteen exceptions and subdivisions, which we will consider.
Let the exceptions be reported.
The first, second and third exceptions, relating to letters written by R.P. Howell, an attorney, and in the name of the United Jewelry Manufacturing Company, must be sustained, for the reason that a declaration of an attorney for the United Jewelers Manufacturing Company cannot be evidenced against this plaintiff, who is a different party.
The fourth, fifth and sixth exceptions will be considered together, relating, as they do, to the drafts.
The drafts were executed in settlement of the amount claimed by the United Jewelers Manufacturing Company, and the evidence tended to show that J.C. Stouffer purchased them before maturity; it was incompetent to allow any testimony which the defendant had against the original payees until the defendant first offered testimony going to show that plaintiff was not a purchaser of said drafts before maturity for value. These exceptions must be sustained.
The seventh exception must be sustained, for the reasons set forth in the foregoing exceptions.
The eighth exception is sustained; for his Honor erred in using the contract which was introduced in the testimony, it being in violation of art. V, sec. 26 of the Constitution, forbidding Judges from charging as to matters of fact.
Ninth. We think his Honor erred in submitting to the jury the question of want of, or the failure of, consideration as between the defendant and the United Jewelers Manufacturing Company, when the testimony tended to show that the plaintiff was the holder and owner of the drafts, and was a purchaser for value before maturity without notice, and there was no testimony to the *553 contrary; hence, plaintiff had nothing to do with the jewelry company. This exception is sustained.
The tenth exception must be overruled; for a reference to his Honor's charge will show that it did contain, in substance, the basis of this ground of appeal.
Eleventh and Twelfth. His Honor should have charged both the requests here pointed out; we have already held that there was no evidence of any collusion between the plaintiff and the jewelry company, and also that the testimony tended to show, without contradiction, that the plaintiff purchased the drafts before maturity. These exceptions are sustained.
The thirteenth, fourteenth and fifteenth exceptions are sustained, for the reason set forth already.
The judgment of this Court is that the judgment of the Circuit Court be reversed and a new trial granted.
MR. JUSTICE GARY dissents.
Concurrence Opinion
It is obvious from the pleadings and issue referred to in the opinion of the Chief Justice that the appeal turns on the question whether the letter written by Howell to the defendant was admissible in evidence. If it was admissible, then there was evidence for the consideration of the jury on the issue whether the alleged indorsement to the plaintiff before maturity was pretensive; and this would open for the defendant the other issue, made by the answer, of failure of consideration, and make the evidence on that issue competent. Howell testified, on behalf of plaintiff, that when these letters were written he held the drafts for collection, as attorney for Stouffer and not for the United Jewelers Manufacturing Company; that the letters were written by a clerk in his office, who made the mistake of saying in them that the drafts were held for the United Jewelers Manufacturing *554 Company. If Howell be regarded as attorney of the United Jewelers Manufacturing Company, indorser, then the declarations contained in the letters written in his office, and signed by him, could not be binding on the plaintiff, as indorsee. If he be regarded the attorney for the plaintiff when the letters were written, as he testified he was, the letters were still not admissible, because it was not within the scope of his power, as agent, to repudiate his client's ownership of the drafts and bind him by admissions that the drafts were owned by another.