W. T. Rawleigh Co. v. Johnson

137 S.E. 820, 139 S.C. 318, 1927 S.C. LEXIS 158

• Court: Supreme Court of South Carolina
• Decided: April 22, 1927
• Docket: 12194
• Status: Published

Opinions

The opinion of the Court was directed by

Mr. Justice Watts.

This is an appeal from a directed verdict in favor of the plaintiff by his Honor, Judge J. M. Nickles.

There are four exceptions. Exception 4 is:

“That the presiding Judge erred in directing a verdict and refusing to submit the case to the jury because (a) the pleadings made the issue and there was testimony that the goods furnished Johnson by plaintiff were intoxicating beverages, which could not lawfully be sold or collected for in South Carolina; (b) there was testimony that Johnson had become a salesman for the plaintiff, and was working under its directions and instructions at least part of the time after the date of alleged contract; and (c) the pleadings raised the issue, and there was testimony as to fraud on the part of the plaintiff’s agent in securing the signatures of the defendants to the aforesaid alleged contract.”

This- exception is sustained on that part which complains :

“The pleadings made the issue and there was testimony that the goods furnished Johnson were intoxicating beverages, which could not be lawfully sold or collected for in South Carolina.”

I/. B. Johnson’s affidavit was admitted in evidence. Part of it is:

“It was represented to me that the extract contained no alcohol, when in fact it contained .70 to1 90 per cent. After selling the goods for awhile I found that the people were becoming intoxicated and using it as a beverage.”

McDaniel, Kirby, Howell, and Burgess testified that the extract had the effect of alcohol. This was sufficient to carry • the case to the jury, on this issue.

There must be a new trial, and the other exceptions are unnecessary to be considered.

• Judgment reversed, and a new trial granted.

Messrs. Justices Stabler and Carter, and Mr. Acting Associate Justice Whiting concur.