The opinion of the Court was delivered by
Mr. Chief Justice McIver.This was an action to recover from the defendant an alleged balance due Hanckel & Riordan for money advanced and cash paid for said defendant by said Hanckel & Riordan at the request and for the use of said defendant — the plaintiffs herein being the successors and assignees of said Hanckel & Riordan, and as *117such the legal owners and holders of said claim. The defense relied upon is that the claim sued on is founded upon transactions for the purchase and sale of cotton for future delivery in the New York market, and are void under the provisions of our act of 1883, now incorporated in Rev. Stat. of 1893 as sections 1859-1861. The testimony adduced by plaintiffs in support of their claim consisted of telegrams, letters, 'and the testimony of Riordan, one of the plaintiffs, taken in writing by a commissioner of deeds for South Carolina, residing in New York. At the close of plaintiffs’ testimony, the defendant moved for a nonsuit upon the several grounds set out in the’ “Case,” which was granted for the reasons there set forth. The plaintiffs appeal upon the several grounds set out in the record, which, together with the grounds upon which the motion for a nonsuit was based and the reasons of the Circuit Judge for granting the same, should be incorporated by the Reporter in his report of this case.
*1181 *117As was said in the recent case of Harvey v. Doty, 50 S. C., at page 556, “the only question for this Court is, whether there was a total lack of evidence tending to' prove all, or any one, of the material issues in the case. The question is — not whether the evidence is sufficient bo establish plaintiffs’ case, for that is a question solely for the jury, and we have no right or disposition to invade their province — but solely whether there was any evidence tending to prove plaintiffs’ case.” If, therefore, the transactions out of which the plaintiffs’ claim originated were contracts for the purchase of cotton for future delivery, as seems to' have been settled by what this- Court held under the former appeal in this case — Riordan v. Doty, 50 S. C., at page 544- — then, as held on the preceding page, the practical inquiry is whether there was any testimony tending to show either one of the , following facts: 1st, that the party making the contract for the sale of cotton for future delivery was the owner or assignee thereof at the time the contract was made; or 2d, that the seller was at the time authorized by the owner or *118assignee thereof, or his duly authorized agent, to- make the sale; or 3d, that it was the bona ñde intention of both parties — seller and buyer — at the time of making such contract, that-the cotton should be actually delivered and received in kind .at the future period mentioned. It seems to us, therefore, that the Circuit Judge erred when, after stating the terms of the statute (sec. i860, Rev. Stat. of 1893,) setting forth the above requirements, and declaring that the burden of proof should be upon the plaintiff to establish the same, he held as follows: “Now the question is, upon whom does the obligation rest to say whether or not he has shown this by the burden of the proof? Upon the Court; especially so, since the evidences of the contract are in writing. These are matters of evidence that the Court must construe, and construing- these telegrams in collection with the testimony-of one of the plaintiffs, I am unable to- see wherein he has shown that the requirements as contained in section i860, which I have just read, have been complied with.” While it is true that the statute does place the burden of proof that the requirements of that section have been complied with, upon the plaintiff, yet such a statutory provision certainly cannot have the effect of abrogating the constitutional provision which, in actions at law, makes the jury exclusive judges of the facts, without any interference or even aid from the Court. Nor does the fact that the testimony happened to be in writing, justify the Court in undertaking to pass upon the force or effect of the facts which happen to be in writing.
2 For while the rule is well settled that it is for the Court to construe a contract in writing, or any. other written instrument which may be offered in evidence upon the trial of a case, we do not understand that such rule goes to the extent of authorizing the Court to pass upon the force and effect of facts which may be stated in a letter or telegram, or in the written testimony of a witness examined before a referee or by commission. This alone would be *119sufficient to require this Court to reverse the order of non-suit for error of law therein.
3 But, in addition to this, it seems tq'us that there was, at least, some testimony tending to show that Hopkins, Dwight & Co., when the contract of sale was made, if not the owners, were at least authorized to make the sale, and some testimony to show that, at the time of making the contract, both parties intended that the cotton should be actually delivered and received in kind at the future period mentioned; but whether such testimony was sufficient to establish either or both of those facts, -was a question exclusively for the jury.
The judgment of this Court is, that the judgment of non-suit be reversed and the case remanded for a new trial.