December 10, 1923. The opinion of the Court was delivered by The complaint contains allegations, not only appropriate to an action on a conditional warranty, but likewise to an action on an original liability.
The complaint, omitting the first paragraph which merely alleges the corporate existence of the plaintiff bank, is as follows:
"That on March 5, 1920, the defendant W.A. Allison wrote a letter to the cashier of the plaintiff herein, which letter reads as follows: `Greenville, S.C. March 5, 1920. Mr. Geo. Nichols — Dear Sir: Mr. Eledge will want about $125 to make crop on. If you will let him have it, I will sign note with him and oblige. [Signed] W.A. Allison.'
"That acting upon said letter and the promise made therein, plaintiff knowing that defendant W.A. Allison was solvent and a landholder, extended the credit solely as the result of the contents of the said letter; that on April 5, 1920, the defendant J.W. Eledge came to plaintiff for the credit requested in said letter, and plaintiff loaned him, because of the aforesaid letter, the sum of $131.70, whereupon defendant Eledge executed the following note: `$131.70. Travelers' Rest, S.C. April 5, 1920. On December 1st after date I or we promise to pay to the order of the Farmers' Bank, negotiable and payable at the Farmers' Bank, without offset, the sum of $131.70, for value received. With discount before and interest after maturity, at the rate of 8 per cent. per annum until paid, *Page 520 and 10 per cent. additional for attorney's fees in case this note is collected by suit. [Signed] J.W. Eledge.'
"(3) That said note was drawn up and the signature of the said Eledge procured, and the said credit extended on the assumption that the defendant W.A. Allison would sign said note as per the terms of the above letter; that shortly thereafter, and before maturity, plaintiff presented said note to the defendant Allison for his signature; that defendant W.A. Allison refused and still refuses to sign said note, and has refused and still refuses to pay to plaintiff the said amount loaned to defendant Eledge in consequence of said letter as aforesaid; that defendant Eledge and defendant Allison have refused to pay said obligation, though demand for payment has been made of both, but payment refused; that plaintiff is now the owner and holder of said note and letter; that by reason of the aforesaid transaction defendants are indebted to plaintiff in the sum of $131.70, with interest thereon at the rate of 8 per cent. per annum from December 1, 1920, plus 10 per cent. attorney's fees.
"Wherefore plaintiff demands judgment against the defendants in the sum of $131.70, with interest thereon from December 1, 1920, at the rate of 8 per cent. per annum, plus 10 per cent. attorney's fee and for the cost of this action."
The appellant answered the complaint by denying his liability on the note mentioned in the complaint; and as a bar to the action pleaded the Statute of Frauds. 1 Code of Laws, 1912, § 3737; 3 Code of Laws, 1922, § 5516.
After the plaintiff introduced its testimony, the appellant made a motion for a nonsuit on certain grounds, which was refused. The appellant offered no testimony, and his Honor, the County Judge, directed a verdict in favor of the plaintiff.
The appellant then made a motion for a new trial, which was overruled and he appealed upon exceptions, which will be reported. In assigning the reasons for overruling the *Page 521 motion for a new trial, it appears that his Honor, the County Judge, rested his conclusion upon the fact that the liability of the appellant was original and not collateral, as the relation of landlord and tenant existed between him and the person to whom the money was advanced to make the crop; and that the advances were made primarily for the benefit of the plaintiff.
We quote as follows from said order:
"The evidence shows that, upon presentation of that letter by Mr. Eledge to Mr. Nichols, he let him have the $125, taking the note introduced in evidence, and adding to the $125 the interest on it to the date of maturity. This case differs widely from Duncan Shumate v. Heller, 13 S.C. 94; there was no consideration passed between the parties when extension of time was requested in that case. In this case the money was loaned on presentation of the letter and the note taken. I do not think that the facts of this case bring the same under the Statute of Frauds, and I cannot see my way clear to grant a new trial."
He therefore erred in directing a verdict in favor of the plaintiff and in not submitting such issue to the jury.
The following authorities sustain our conclusion that the testimony in question should have been submitted to the jury: Lorick Lowrance v. Caldwell, 85 S.C. 94;67 S.E., 143. Rice v. Medlin et al., 116 S.C. 213;107 S.E., 911. Gaines v. Durham (S.C.), 117 S.E., 732.
New Trial.
MESSRS. JUSTICES WATTS and FRASER concur.