Acme Manufacturing Co. v. Massey

146 S.E. 605, 149 S.C. 22, 1929 S.C. LEXIS 66

Opinions

The opinion of the Court was delivered by

Mr. Chief Justice Watts.

This action is upon complaint, stated in separate causes of action, for goods sold and delivered, to wit, a carload of fertilizer shipped April 18, 1925,'and a carload shipped June 2, 1925, by plaintiff to defendants, it being alleged by the plaintiff that said fertilizer was sold and delivered under the terms of a dealer’s contract attached to the complaint; it being further alleged that there is due by defendants to plaintiff for the first carload $779.04, with interest at 8 per cent, from May 10, 1925, and for the second carload $604, with interest at 8 per cent, from July 10, 1925. '

The answer to each cause of action is the same, it being admitted that the goods were sold and delivered, but not under the contract alleged; and it being alleged that defendant tendered payment for the shipments on the basis upon which the same were purchased. The said tender was refused, and the discount referred to in the dealer’s contract represented interest charges sought to be enforced, amounting to more than the rate of interest allowed by law in this State.

The case was by consent referred to Paul Moore, Esq., to take and report the testimony. Upon the testimony so taken the cause came on for hearing before his Honor, Judge E. C. Dennis, and upon consent of counsel was marked “heard.” Thereafter Judge Dennis heard arguments at Darlington, S. C., and on October 15, 1927, made a decree adjudging that plaintiff was entitled to the full amount claimed in the first cause of action, viz., $779.04, with interest at 8 per cent, per annum from May 10, 1925, and an additional amount of $100.00 which he found to be a reasonable fee for the plaintiff’s attorneys under the written contract; and, on the second cause of action, that plaim tiff was only entitled to recover the sum of $516.77, without interest and without attorney’s fees. Within due time thereafter notice of appeal was given by the attorneys for plaintiff. Within the time required by law, the defendant’s attorneys also served notice of intention to appeal to the Supreme Court.

Both parties except to the decree of Judge Dennis. This is a law case, a jury trial having been waived. It has been decided in a number of cases that under such circumstances the findings of fact will not be disturbed, where there is any testimony to sustain such finding. There was a conflict of evidence, and finding of Judge Dennis must stand; we see no error of law.

All exceptions are overruled, and judgment affirmed.

Messrs. Justices Beease and Stabeer, and Mr. Acting Associate Justice C. J. Ramage concur. Mr. Justice Cothran concurs in part, and dissents in part.