Wheatley & Co. v. West

1. The declaration sets forth a cause of action with legal fulness and distinctness. 3. The action being for the proceeds of cotton entrusted by the plaintiff to the defendants for sale, and, in the progress of the trial, the counsel of the parties having agreed in open court that the inquiry before the jury be restricted to the right of the defendants, under the evidence, to appropriate a certain amount of the money to a debt of a third person, such appropriation having in fact taken place, the admission or rejection of evidence on other questions, and the refusal of the court to grant a non-suit, were, by the agreement, rendered immaterial, and were not open to consideration on a motion for new trial. 3. If the court, in ruling out evidence, speaks in a low tone, so as possibly not to be heard by the jury, the objecting counsel should request that the ruling be repeated in a tone more elevated and distinct. 4. The charge of the court as set out in the bill of exceptions, is free from substantial error, and reasonably ample and minute. While some of the written requests to charge may not be objectionable, the refusal to charge the same, in view of the charge as given, is not cause for new trial. 5. It is error not to charge in writing, and in writing only, if request De made as prescribed in §244 of the Oode. If the court is certain that counsel made the request in due time, and is not certain that the request was subsequently waived, a failure to comply is the denial of a clear statutory right, and a new trial should be granted. Jackson, J., dissented.

Pleadings. New Trial. Practice in the Superior Court. Charge of Court. Before Judge Crisp. Sumter Superior Court. April Term, 1878. West brought complaint against Wheatley & Co., alleging that they received from him, in the fall of 1869 and spring of 1870, certain cotton, to be shipped to New York and sold on his account, they undertaking to account to him for the proceeds of sale after deducting expenses and commissions ; that the cotton was held in New York until May, 1871, when it was sold by order of plaintiff; that the proceeds, $7,000.00, after deducting expenses and commissions, were received by Wheatley & Co., who thereby became liable, and promised to pay, etc. The defendants demurred to the declaration. The demurrer was overruled. They then pleaded the general issue. After the evidence for the plaintiff was closed, and a motion for non-suit was overruled, the defendants pleaded specially that they had accounted to plaintiff, before suit brought, for the proceeds of the cotton except $136.86; also, that after the cotton was shipped, but before it was sold by order of plaintiff, the latter agreed with defendants that they might appropriate the net proceeds of eighteen bales to a claim which they held against James P. West, a brother of plaintiff, amounting to $1,000.00, or other large sum; that the amount thus appropriated, added to what they had paid the plaintiff, absorbed the entire net proceeds, except the sum above stated, $136.86. The case proceeded, and various rulings were made by the court on the admission of evidence as to the amount for which defendants were liable, when, after the close of the testimony of the first witness for the defendant, counsel for the respective parties agreed that all of the proceeds had been accounted for except $750.00 appropriated to the claim against James P. West, and that the inquiry before the jury should be restricted to the right of defendants to make such appropriation. Thus many of the rulings theretofore made, and complained of in the motion for new trial, became immaterial to the issue into which the case was thus resolved. Upon this issue both defendants composing the firm of Wheatley & Co., testified emphatically that the agreement set up in the last plea was made by plaintiff, and that under it they appropriated the net proceeds of eighteen bales to the indebtedness of his brother to them. This was as positively denied by plaintiff. The testimony was distressingly conflicting. None other except that of the parties interested was introduced on this issue. The jury found for the plaintiff. The defendants moved for a new trial upon the following, amongst other grounds: 1. Because the court overruled the demurrer to the plaintiff’s declaration. 2. Because in excluding certain testimony, injurious to the defendants, the court spoke in a tone of voice “ which might not have reached the jury,” and without calling their attention to the ruling, and also failed to allude to it in his charge. 3. Because the court erred in not writing out and reading his charge to the jury, and having the same filed with the clerk as required by law ; the request so to do having been made by the defendants after the announcement of “ready” by the parties and before any evidence was offered. 4. Because the court erred in charging as follows: “ If Mr. Ham West entrusted cotton to J. W. Wheatley & Co., to be sold for his benefit, they are accountable to him for the proceeds of that cotton ; without his assent they could not appropriate that cotton to the benefit of Pem West, or of any one else, no matter what Mr. Pem West might have said. Mr. Ham West, himself, must have assented before there could be any such appropriation as that to bind Mr. Ham West. If you find that there was no assent by Mr. Ham West to the appropriation, that will end your deliberations in this case, and you will find for the plaintiff.” 5. Because the court erred in charging as'follows : “The defendants claim that after the shipment of this cotton Mr. Pem West, the brother of the plaintiff, told them that he had an interest in that cotton, and that his interest might go to them in payment of a debt that he owed them ; that afterwards they reported that conversation to Ham West, and that Ham West agreed with them that - eighteen bales of that cotton, that had been so shipped, should be used by Wheatley & Co., for the benefit of Ham West. I say to you this, that if, after that cotton was shipped, Mr. Pem West stated to Wheatley & Co. that he had an interest in that cotton, and they might apply his interest to the payment of his debt, and afterwards, and before the sale of the cotton, they reported that fact to Ham West, and if he agreed with them that eighteen bales of said cotton should be appropriated to the benefit of Pem West, and Wheatley & Co. went forward and sold that cotton and appropriated eighteen bales, or the proceeds, to the benefit of Pem West, they are entitled to that amount as a credit against Ham West; and in my judgment that is true, whether there has been any proof before you of a debt of J. W. Wheatley & Go. against Pem West or not. Under that agreement, in my judgment, Wheatley & Co. would be responsible o Pem West for any appropriation which they may have made of that cotton. If they appropriated it to his benefit they must account to him for it, or, in other words, if Mr. Ham West agreed that eighteen bales of that cotton should go the benefit of Pem West, then, if Wheatley & Go. sold it, and put it to the benefit of Pem West, it was no concern of Mr. Ham West where it went. If he assented to it they must account to Pem West for it.” 6. Because the court erred in charging as follows: “Right here, I will say to you that a promise to pay the debt, or default of another is not binding, is void, unless it be in writing, with certain exceptions, which, in my view, it is not necessary to give you in charge. If the agreement claimed by the defendants existed, and Wheatley & Go. sold the cotton and appropriated it in accordance with the agreement, that woxild be an executed contract, executed as against Ham West, and they would be entitled as against him to a credit for that sum.” 7. Because the coxxrt erred in charging as follows: “Under our law, parties are competent witnesses; they are allowed to testify; it is your duty in all cases to reconcile the testimony, if you can do so. The law imputes perjury to no one, and juries should never do so except when it is unavoidable. If there is any theory that can be adopted which is consistent with the idea that all the witnesses have spoken the truth, that is the theory for you to adopt. When parties are witnesses, you are to pass upon it; that is, when witnesses are parties to the suit the jury are to judge of the degree to which their interest affects their credibility” 8. Becaxise the verdict was contrary to the charge as a whole. As to the third ground, the court certified that at the opening of the case defendant’s counsel requested that the charge be reduced to writing ; that the charge was not written because the court was of the impression that counsel after-wards agreed that the stenographer should take it down as delivered; that counsel does not recollect ._uch agreement, and the court is not certain that he made it; that the charge was taken down verbatim by the stenographer, copied and delivered to counsel. The motion for new trial contains every material portion of the charge, and in the order given. The requests are deemed immaterial to the decision, and therefore omitted. The motion was overruled, and the defendants excepted.