July 13, 1915. The opinion of the Court was delivered by This is an action for the recovery of money, alleged to have been advanced by the plaintiffs, in the purchase of certain cattle for the defendant, which were delivered to the defendant at Greenwood, S.C. in accordance with the instructions of the defendant. The negotiations out of which the contract between the plaintiffs and the defendant arose, are thus stated in the complaint:
"That on and prior to January 20, 1911, the defendant, Enoch Smith, applied to the plaintiffs to purchase for him on commission a carload of medium price cattle, costing from 3 1/2 to 3 3/4 cents. Not having any cattle which could be sold on that date, the plaintiffs advised the defendant that they would look out for a car of cattle such as he desired, and in case the same were found, he would be notified. On or about January 20, 1911, the plaintiffs located a car of cattle at Chattanooga, Tenn., which could be purchased at the price named, and immediately notified the defendant thereof, whereupon the defendant instructed the plaintiffs to purchase the same for him, and to ship the same to Greenwood, S.C."
The defendant denied the allegations of the complaint, and set up the statute of frauds as a defense. The jury rendered a verdict in favor of the plaintiffs for $384.25, the amount claimed, with interest, and the defendant appealed.
His Honor, the presiding Judge, construed the complaint as alleging a cause of action based upon agency, and not upon a contract of bargain and sale. He also charged the jury as follows:
"That if the jury find from the testimony in this case that the defendant instructed the plaintiffs to purchase for him a carload of cattle, and if the jury find that it was necessary for plaintiffs to advance moneys, for the account *Page 346 of the defendant, in order to get such cattle, and if the jury find that the plaintiffs did so advance money for the benefit of the defendant, and if they find that the plaintiffs in such matter acted in good faith, without fraud, without unfair dealing, and without negligence, and if the jury find that when such cattle was tendered to the defendant he refused to receive it, then the plaintiffs would have the right to sell the said cattle, for the account of the defendant, to give him credit for the net proceeds, after the payment of all legitimate expenses. * * * While the contract sued on is the only one the plaintiffs can recover on, the jury is instructed that if they have proven the contract sued on, the statute of frauds has no application, and it makes no difference in this case whether the defendant received the cattle or not."
His charge to the jury that the statute of frauds was inapplicable to a cause of action, based on agency, is sustained by the case of Bird v. Muhlinbrink, 1 Rich. 199, 44 Am. Dec. 247, 30 S.C.L. 199.
The motions for nonsuit and for the direction of a verdict were properly refused, as there was ample testimony tending to sustain the allegations of the complaint.
The construction which the plaintiffs placed upon their contract with the defendant appears from the following letter: "Atlanta, Ga., Jan. 25, 1911.
"Mr. Enoch Smith, Greenwood, S.C. ___ Dear Sir: You will find inclosed bill for car of cattle shipped you to Greenwood, S.C. tonight. We had some trouble about getting them shipped as the Seaboard road would not take them, as they would have to go by Augusta and be inspected.
"We bought this load of cattle. They are not quite as good as we expected, but very good butcher cattle. This is just what they cost us. We charged you $25.00 com. Now if these cattle look too light to you and do not make you any money, and you do not want to pay the com. write us and we will mail you a ck. as we do not want you to *Page 347 lose on them. We think you received good weight on them, as we weighed them after feed and water, and they lost less than 200. Hope they will arrive in good shape and make you some money. We did not want to draw a draft for the load, but we are loaded very heavy this week, having several drafts to take care of tomorrow. We was compelled to draw as we could get credit for it in bank. Now if this is not all O.K. let the draft come back, and mail us ck. We will be in shape to take care of it if it returns, which is perfect satisfactory to us.
"Yours very truly, London Elder."
When the other exceptions are considered in connection with these rulings, and with the charge in its entirety, especially that portion hereinbefore quoted with approval, it will be seen that they can not be sustained.
Judgment affirmed.