Bailey v. Godman

39 S.C.L. 210

• Court: Court of Appeals of South Carolina
• Decided: November 15, 1851
• Status: Published

Opinion

Curia, per O’Neall, J.

In this case, had I been of the jury, I would not have allowed the defendants a dollar of deduction. But that depends so much upon the facts, that I may just as well be mistaken, as the jury. Hence, therefore, I would leave the verdict undisturbed.

The only question is, whether the defence was admissible under the pleadings.

I have very little doubt, that the special plea might have been had, on special demurrer. But the plaintifF did not so treat it. He took issue upon it.

If the facts alleged in it were proved, they amounted to a claim for a deduction from the purchase, on account of a fraudulent misrepresentation.

It may be, that such a defence was proper as a discount, and not as a plea. Yet if the plea informed the plain tiff just as well as a notice- of discount, there is no reason to send the case back because a formal discount was not filed. The plea had been filed, for a time much longer than the notice required for a discount. Hence the substance of the law of discount has been obtained, and we never send a case back about a form, when the party complaining has not taken the proper steps to test the form.

The motion is dismissed.

Evans, Ward law, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.