December 10, 1926. The opinion of the Court was delivered by This case was begun by the service upon J.W. Thomas, deceased, of the summons and complaint, and the defendant, J.W. Thomas, duly filed his answer. Thereafter J.W. Thomas died, and an order was taken substituting, as parties defendant, his legal representatives, and an order was duly taken permitting the substituted defendants to file an amended answer. The case came on for trial before his Honor, Judge Sease, and a jury. Motions for nonsuit and directed verdict were both made and overruled. The case was submitted to a jury, and a verdict was rendered for the full amount sued for.
The complaint is in the usual form and sets forth that *Page 237 J.W. Thomas made his promissory note, bearing date the 24th day of May, 1920, whereby he promised to pay to Freeman-Moore Company the sum of $500.00 one year from said date; that plaintiff is the holder of the said note in due course, and is the legal owner of the same, and asks for judgment for the amount of the same. The defendants in the amended answer set out that the said note is void by reason of the fact:
"That the said paper was given by J.W. Thomas, deceased, to Freeman-Moore Company in pursuance of an agreement whereby there was to be sold or transferred at some future time to J.W. Thomas, certain mineral products, and that said transaction, as entered into, had no legal effect or force, and that the said paper, alleged to have been signed by J.W. Thomas and set up in the complaint, was utterly void and of no effect."
The note, charge of His Honor, and the "Contract for South America Nitrate of Soda" will be set out in the report of the case and need not be repeated here.
The Court below tried the case under the following section:
"(51666) Sec. 2. In any and all actions brought in any Court to enforce such contracts, bargains, or agreements, or to collect any not or other evidence of indebtedness, * * * the burden of proof shall be upon the plaintiff to establish that at the time of making such contract, bargain or agreement, * * * it was the bona fide intention of both parties * * * that the said certificate, bond, or other evidence of debt, cotton, grain, meats, or other animal mineral or vegetable product so agreed to be sold and transferred should be actually delivered and received in kind by the said parties at the future period mentioned therein."
His Honor, Judge Sease, submitted the issues as set forth in the said section fairly to the jury, as an inspection of his charge set out will show. The serious *Page 238 question before this Court is, Was there sufficient evidence to carry the issue to the jury?
We find the following in the report of the case:
"J.W. Freeman testified that there was no delivery at the time.
"The Court: He wants to know when was the guano to be delivered. A. I don't know.
"Q. Was it at a future time? A. Yes, sir.
"Q. Is there any doubt about that? A. I don't think so; no, sir.
"The Court: When do people usually use that nitrate of soda in this country? A. May, June, and July.
"The Court: I notice that note is dated the 24th of May. * * *
"Q. Were you familiar with parties who made those contract? A. I don't remember who made that certain contract; we handled stuff along about that time.
"Q. Was Jonas Thomas a large farmer? A. I think so.
"Q. Was he using soda? A. Yes, sir.
"Q. In connection with his farming operations? A. Yes, sir.
"Q. Do you have any reason to doubt that he had the intention of receiving soda itself when he made that contract? A. No, sir.
"Q. Do you know what his intention was? A. No, sir.
"The Court: Ask him whether or not the soda was actually delivered.
"The Witness: I don't know; we had nothing to do with it after we transferred the contract. It was up to him to order it out, when it was to be shipped; we had nothing to do with it. * * *
"Q. And that contract contemplated a future delivery of soda? A. Yes, sir.
"Q. You say that it is a fact, that they [Grace Co.] are importers of soda? A. That is what I understand." *Page 239
On refusing a nonsuit, his Honor said:
"I think there is testimony to go to the jury on the question of intent. There is testimony that Thomas was a large farmer and user of fertilizer; there is testimony that Duvall Grace were importers, and this contract was one or the other; anyhow, they were sellers and deliverers of nitrates in this country. I am going to leave it to the jury to say what was the intent of the parties at the time."
We find the following in the testimony of Kenneth McColl:
"Q. Mr. McColl, Jonas Thomas was engaged in large farming operations in 1920, was he not? A. Yes, sir.
"Q. He used a reasonable amount of fertilizers, nitrate of soda, in his operations? A. I would say so; yes, sir.
Testimony of Grace Kennedy:
"My father, J.W. Thomas, got a large contract of soda from W.R. Grace Co., originally, I don't remember just who he bought from; I don't remember whether he bought direct or not; * * * he always bought about a year ahead.
"Q. He got soda on both of these contracts, didn't he? A. Yes, sir; they were delivered in 1921. * * *
"Q. When your father entered into a contract of this kind, he intended to get the soda, didn't he? A. Sure he did.
"Q. Because he wanted the soda, he had to have it, didn't he? A. He wanted it.
"Q. When he made a contract like this he did it because he wanted the soda? A. Yes, sir.
"Q. And he expected to get it, didn't he? A. Yes, sir. He expected to get the soda.
"Q. Your father was not a gambler, was he? A. No, sir. * * *
"Q. Didn't your father deal year after year with contracts similar to that with W.R. Grace Co.? A. Yes, sir.
"Q. Didn't he always get his soda from W.R. Grace *Page 240 Co. and didn't he always take it? A. Yes, sir; when it was delivered."
This being a money demand, it was triable by a jury under the Code of Procedure. His Honor submitted the issues to the jury in a short, clear, and able charge that left no room for any doubt. We do not see where the defendants can complain, as all their rights were amply safeguarded by the Court. It seems clear that, from an inspection of the form of contract used in this case and from all the testimony, there was sufficient to sustain the verdict of a reasonable and fair jury that plaintiff had made out his case by the greater weight of the testimony on the question of intent.
We do not think his Honor erred in charging that, if the fertilizer was actually delivered, this fact would take the contract out of the way of any contention that this was a gambling contract. We think there was testimony here that would, perhaps, make that charge applicable to the case. But, in any event, the defendants have failed to show wherein they were harmed by this charge of his Honor. Under no view of the case can we see where any harm could result to defendants before any reasonable and sensible jury.
The point is further made that plaintiff, in order to come in under the statute above set out and under which his Honor submitted the case to the jury, ought, in the first instance, to have set out the facts relied on to sustain the note, in the complaint. We do not think that this was necessary in this case. The note was a plain obligation on its face and, if nothing else had appeared, would have justified judgment against the defendants. But defendants themselves raised the question of the legality of the note by their answer in the case.
When the answer set up the defense that the note was void, then section 431 of the code of Civil Procedure applied.
"But the allegation of new matter in the answer, not relating *Page 241 to a counterclaim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require."
The following cases show that the defense set up in the answer in this case under the law made an issue for trial.Craig Milling Co. v. Cromer, 85 S.C. 350; 67 S.E., 289.Hubbell v. Courtney, 5 S.C. 87. Geiger v. Kaigler, 15 S.C. 262.Simpson v. Ins. Co., 59 S.C. 195; 37 S.E., 18.Bank v. Gadsden, 56 S.C. 313; 33 S.E., 575.
It appears to us, under the charge of his Honor and under the testimony and pleadings, that no reversible error has been made in this case. The issues were narrowed to the very point in the case, and there is evidence to sustain the finding of the jury.
It is the judgment of this Court that all the exceptions be dismissed and that the judgment below affirmed.
MESSRS. JUSTICES WATTS, BLEASE and STABLER concur.