Summary
B efoke MELTON, J., at Chambers, Columbia, August, 1870.
Appeal by the defendant from a judgment upon an answer adjudged to be frivolous, under Section 270 of the Code of Procedure. The allegations contained in the complaint were as follows:
“1. That the defendant, on the 2d day of November, in the year 1865, at Charleston, in the said State, by bis bill of exchange, commonly called an inland bill, required J. M. Brawley to pay to the order of Wylie T. Burge and Albert Z. Demorest, by their firm name of W. T. Burge & Co., thirty days after the date thereof, the sum of twelve hundred and forty-four dollars and twenty-three cents, for value received.
“2. That the said bill was presented and accepted by the said J. M. Brawley.
“ 3. That, some time subsequently, the firm of W. T. Burge & Co. was dissolved, and the plaintiffs, for full consideration, purchased jointly the accounts and dioses in action belonging to the said firm, which were assigned, and, by delivery, transferred to the plaintiffs; and among the dioses so purchased and delivered was the inland bill of the defendant, hereinbefore described.
■ “4. That the said bill of exchange was regularly presented to the said J. M. Brawley for payment, but was not paid.
“5. That the defendant had notice of the non-payment, and the defendant subsequently made partial payments upon the said bill, to wit: Three hundred and thirty-eight dollars and eighty-nine cents ($338.89) on the 17th May, 1866; one hundred dollars ($100) on the 4th June, 1866; two hundred dollars ($200) on the 29th June, 1866; one hundred and forty dollars ($140) on the 29th May, 1867; and one hundred and twenty dollars ($120) on the 18th December, 1867; and fifty dollars ($50) on the 16th November, 1869.'
“ 6. That the balance of the principal and interest due upon the said bill of exchange is still due and unpaid to the plaintiffs, who are the legal owners of the said bill of exchange, and legally entitled to receive the same. Wherefore the plaintiffs demand judgment against the defendant, as drawer of the said bill, for the balance of the principal, to wit: .Two hundred and ninety-five dollars and thirty-four cents, ($295.34,) with the lawful interest that has accrued thereon, with costs of this action.”
The answer was as follows:
“The defendant, Joseph Crews, by his attorneys, Chamberlain, Seabrook & Dunbar, answering 'the complaint herein:
“1. Admits that'he drew the bill of exchange alleged in the said complaint, but denies that he incurred any personal responsibility for the same, inasmuch as he drew it as the agent of L. Dial, of the County of Laurens, in the State aforesaid, for whom he was at the time acting as mercantile agent, in a mercantile business, in the town of Laurens; and that W. T. Burge & Co., in whose favor the said bill of exchange was drawn, were well acquainted with the fact that the goods purchased, for which the said bill of exchange was given, were purchased by the said Joseph Crews, as agent for the said L. Dia.1, and also believes that the plaintiffs, James Reid Boylston and Albert Z. Demorest, knew the fact before they purchased the said bill of exchange, and that it was generally known that the said defendant was then and afterwards acting as agent for the same L. Dial.
“2. He denies that the payments alleged to have been made by him at the divers times named in the said complaint were made out of his individual funds, but alleges that they were made out of the funds of his principal then in his hands.
“3. He denies that, as agent of the said L. Dial, he'has any moneys in his hands belonging to his said.principal, and avers that he never was, nor is now, liable in any manner, shape or form, personally, for the balance alleged in the said complaint to be due on the said bill of exchange.
“ Wherefore the defendant demands judgment for costs in this action.”
On the 22d August, 1870, His Honor Judge Melton made an order as follows:
“On reading and filing the pleadings in this action, and notice of this motion, and proof of due service thereof, and on motion of Pope & Haskell, for the plaintiffs, and after hearing Messrs. Chamberlain, Seabrook & Dunbar, in opposition thereto: Ordered, That the answer of the defendant, Joseph Crews, herein, be overruled as frivolous, and that the plaintiffs have judgment thereon for the relief demanded in the complaint, with costs of this action, and ten dollars’ costs of this motion.”
On the 23d August, 1870, judgment was entered for the plaintiffs.
The defendant appealed, his notice or ground of appeal being as follows:
“ The Court below erred in overruling the answer as frivolous, and ordering judgment to be entered against the defendant for the relief demanded in the complaint, with costs of the action, and ten dollars’ costs for the motion.”
First. An appeal lies from a judgment entered upon an order to strike out an answer as “ frivolous.” — Manning vs. Tyler, 21 N. Y., 570 ; People vs. Me Cumber, 18 N. Y., 315.
“ The practice in regard to frivolous answers, demurrers and replies is regulated by Section 247 (corresponding to Section 270 of our Code) of the Code, which provides that the party aggrieved may apply, upon a notice of five days, to a Judge out of Court, for judgment, and that judgment be given accordingly.
“ The frivolous pleading in such cases is not stricken out, but remains upon the record and becomes part of the judgment roll. An appeal may be taken from the judgment, in such cases, from the special to the general term, and from thence to the Court of Appeals. But the manner of dealing with sham and irrelevant answers is entirely different,” &c. — Briggs vs. Bergen, 23 N. Y., 163.
“It is first insisted that the order directing final judgment is erroneous ; that the Judge has only power to adjudge the demurrer frivolous, leaving the parties precisely as if no pleading had been interposed.
“Whether a decision, under Section 247, is an order or judgment, has given rise to many conflicting opinions, as well as adjudications, both at special and general terms. The better opinion seems to be, and the majority of cases so hold, that such a decision is a judgment upon an issue of law, and not an order simply, from which alone an appeal can be taken.”— Witherhead vs. Alim, 28 Barbour, 663, and authorities there cited; King vs. Stafford, 6 How. Pr. Rep., 127; 5 Ilow., 30, 247; 6 id, 21; 7 Barb., 581; 7 How., 396.
Second. The answer, in this case, sets up a valid defense, or, at least, such a defense as would require the intervention of a jury to determine its sufficiency.
“Every contract made with an agent, in relation to the business of the agency, is a contract with the principal, entered into through the instrumentality of the agent, provided the agent acts in the name of his principal. The party so dealing with the agent is bound to his principal; and the principal, not the agent, is bound to the party. It is a general rule, standing- on strong foundations, pervading every system of jurisprudence, that where an agent is duly constituted, and names his principal, and contracts in his name, and does not exceed his authority, the principal is responsible, and not the agent. The agent becomes personally liable only when the principal is not known, or where there is no responsible principal, or where the agent becomes liable by an undertaking in his own name, or. when he exceeds his power. If he makes the contract in behalf of liis principal, and discloses his name at the time, he is not personally liable, even though he should take a note for the goods sold, payable to himself,” &c.- — 2 Kent. Com., 629 and 630.
“But although the rule is thus strict in relation to the mode of executing sealed instruments, where, for one,, the objects of the instruments, as well as the due technical and legal operation of the same, it is essential that they should be in the name of the principal, and under his seal, yet a more liberal exposition is allowed in cases of unsolemn instruments, and especially in cases of commercial and maratime contracts, which are usually drawn up in a loose and in-artificial maimer.”' — Story on Agency, Section 154, p. 181.
Third. This answer is not such an answer as to fall within the meaning of the term frivolous, as used in the Code, and interpreted by the Supreme Court of New York.
“An answer which denies a material allegation of the complaint is not frivolous.” — Davis vs. Potter, 4 Plow. Prac. Rep., 156also, Richter vs. MeMurray, 15 Abbot Prac. Rep., 346.
The defendant may sot forth as many defences, whether legal or equitable, or both, as he may have. — Subdivision 2, Section 173, of Code.
The insufficiency of a pleading must be so apparent that the Court can determine it upon hare inspection, without argument. — Sixpenny Savings Bank vs. Sloan and others, 13 Hoiv., 544.
“Although there is but slight evidence of merits in a defense, it is sufficient to prevent the answer from being struck out as sham or frivolous.” — Munn and others vs. Barnum, 12 How., 563.
“The doctrine of the cases is, that the Court must be well satisfied that such pleading is clearly frivolous, and is-interposed in bad faith, for the purposes of delay, or some other improper motive.” — Temple vs. Murray and Ely, 6 How., 329.
“An answer which is so framed that it does not set up a valid defense, but which states facts that may, by being properly averred, constitute a defense, will not he struck out as sham, irrelevant or frivolous.” — Struver vs. The Ocean Insurance Company, 9 Abb., 23.
The same doctrine is held in Alfred vs. Watkins, 1 Code, Rep. U. S., 343.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
