Fewell v. Deane , 43 S.C. 257 ( 1895 )

The opinion of the court was delivered by

Mr. Justice Pope.

This action came on for trial before the Hon. Ernest Gary, as presiding judge, at the November term, 1893, of the Court of Common Pleas for York County. The hearing was had upon the report of W. B. McCaw, Esq., as special referee, and the testimony taken by him. On the 28th December, 1893, the Circuit Judge filed his decree dismissing the complaint. This decree must be reported in full. The plaintiffs appeal from said decree on eight grounds. These exceptions will be set out in the report of the case.

It occurs to us that the plaintiffs maintain a most extraordinary position, namely: that they have the right to buy goods by sample, and without a denial that the goods so sold and delivered correspond with the sample, sell said goods at a profit, and then, without paying back to their customers the money paid by such customers for the oats (the goods sold) in question, or without, when they sold the oats on time, or credit, to their customers, releasing their customers from such sale, that then they can require the defendants to pay them back all the purchase money, and a little more, on the ground that the oats sold were worthless. We agree with the Circuit Judge that the case of Kauffman Milling Co. v. Stuckey, as reported in 37 S. C., 8, and in 40 S. C., 110, is conclusive of this case.

•It is the judgment of this court, that the judgment-of the Circuit Court be affirmed.