March 3, 1911. The opinion of the Court was delivered by This action was commenced before a magistrate, to recover the sum of seventy-one dollars and thirty-five cents, alleged to be due on an open account. The magistrate rendered judgment in favor of the plaintiff, for said amount. The defendant appealed, but the appeal was dismissed by the Circuit Court; whereupon the defendant appealed to this Court upon exceptions, which will be reported.
The case was tried twice in the magistrate's court. On appeal from the first judgment, rendered by the magistrate, his Honor S.W.G. Shipp, presiding Judge, adjudged that the defendant was entitled to a nonsuit, and ordered that the case be remanded to the magistrate's court, for such further action, as the plaintiff might see fit to take. When the case was called for trial the second time, before the magistrate, the defendant demurred, on the ground that there was another action pending between the same parties, for the same cause. The magistrate overruled the demurrer, on the ground that the plaintiff had the right, under the order of Judge Shipp, to take such action thereafter, as he saw fit.
We do not deem it necessary to state any additional reasons, to show that the demurrer was properly overruled. This disposes of the first and second exceptions.
The due bill was as follows: "Due D.H. Wall for money advanced Chelsea Club $60.00. E. Martin."
In the statement of account rendered by the plaintiff against the defendant, on the 18th January, 1909, the following item appears: "May 26. Money advanced to pay off hands (due bill). $60.00." *Page 65
The same item appears in the statement of account, rendered on the first of March, 1909, in this form: "May 26. To due bill for cash to pay hands, $60.00."
When the plaintiff offered the due bill in evidence, the objection which the defendant interposed to its introduction, was, "that it does not show who E. Martin is, and it does not appear, on the face of said due bill, that the defendant is bound by it."
Section 368 of the Code provides, that "upon hearing the appeal, the appellate Court, shall give judgment, according to the justice of the case, without regard to technical errors and defects, which do not affect the merits." Even conceding that E. Martin, the agent of the defendant, was not authorized to execute the due bill, nevertheless, it appears that it was given, for money advanced for the benefit of the club. And, it is a reasonable inference from all the testimony, that it was so expended, especially when it is taken into consideration, that the defendant did not rely upon the fact, that the money was used for other purposes, but simply upon the objection, that it does not appear, upon the face of said due bill, that the defendant was bound by it. The cases of Williamson v. Eastern B. L. Asso.,54 S.C. 582, 32 S.E. 765, and Drewry v. Amusement Co.,87 S.C. 445, show that under such circumstances, the principal is estopped from denying the authority of the agent.
Thus showing that the remaining exceptions cannot be sustained.
Affirmed.
MR. CHIEF JUSTICE JONES concurs.