This is an action on the following note:
"On or before the first of December, 1908, I promise to pay to Germofert Manufacturing Company, or order, at Winnsboro Bank, eleven hundred and seventy-two and 72-100 dollars, with interest at seven per cent. per annum, after maturity until paid, and all costs of collection, including attorney's fees, not exceeding ten per cent. if collected by law or through an attorney at law. Balance due for 1,090 bags of fertilizer, sold to me by said payees. It is hereby expressly understood and covenanted, that the said Germofert Manufacturing Company sells said commercial manure as to its quality and effect on crops, only on the guaranteed analysis, and I admit that every sack is branded according to law, and that the inspector's tag is on every sack for which this note is given. And I in nowise hold payees responsible for practical results of said fertilizer on crops. And in consideration of the above I accept said fertilizer on these terms, and each of us, whether principal, security, guarantor, indorser or other party hereto, hereby severally waives and renounces, each for himself, demand, protest and notice of demand, protest and nonpayment. (Signed) A.B. Cathcart." *Page 128
The defendant admitted the execution of the note, but pleaded failure of consideration and breach of warranty on the part of the plaintiff. The jury rendered a verdict in favor of the defendant, and the plaintiff appealed.
His Honor, the presiding Judge, allowed the defendant to introduce testimony as to the condition of the crops upon which the fertilizer was used, for the sole purpose of showing that the guaranteed analysis did not contain the ingredients therein stated. The appellant's attorneys objected to the introduction of this testimony; and the practical question argued by them is whether the fact that the guaranteed analysis failed to state correctly the ingredients composing the fertilizer could be established in any other manner than by a chemical analysis. There is no good reason why such fact could not be proved by circumstantial, as well as direct, testimony, in the absence of a legal requirement providing the manner in which such fact should be established. Furthermore, the contract herein must be construed in connection with chapter 34, art I, Code of Laws 1912. PhosphateCo. v. Arthurs, 97 S.C. 358, 81 S.E. 663. The cause just cited is similar to the one under consideration, and, in discussing a similar defense, the Court said:
"If there was failure to comply with the statutory requirements, in the manner set forth in the defense interposed by the defendant, then a recital in the note to the contrary would be construed as an attempt to dispense with the statutory requirements, and, therefore, null and void, on the ground of public policy."
This is clearly shown by Associate Justice (afterwards Chief Justice) McIver, who delivered the opinion of the Court in the case of McConnell v. Kitchens, 20 S.C. 430, 47 Am. Rep. 845, in which similar statutes were under consideration.
MR. JUSTICE HYDRICK concurs in the dissenting opinion. *Page 129