Harvey & Co. v. Doty , 50 S.C. 548 ( 1897 )

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This is an action to recover a balance due plaintiffs by defendant for money advanced by plaintiffs for defendant at his request, and for his use and benefit. The main defense interposed by defendant is, that plaintiffs’ claim is founded upon transactions for the purchase and sale of grain for future delivery, in the market of Chicago, and that at the time such contracts were entered into these plaintiffs were not “the owners or assignors of the said corn, or authorized, at the time of the making of said contracts by the owners or assignors thereof, or their authorized agent, to make or enter into such contracts, and it was not the bona fide intention of the plaintiffs and the defendant, at the time of the making of the said contracts, that the said corn so agreed to be sold and transferred should be actually delivered in kind by the plaintiffs and actually received in kind by the defendant, at the period in the future mentioned and specified in the said contracts, and the same were hence illegal, void, and without effect.”

The evidence introduced on the part of the plaintiffs consisted of the testimony of the only two members of the firm who resided in Chicago, where the transactions in question took place; the rules and regulations of the Chicago Board of Trade, at which such transactions were entered into, which seem to have been introduced without objection; the correspondence between the parties, plaintiffs and defendant, both by telegraph and by mail; sundry memoranda of sale and purchase sent to defendant by plaintiffs, and certain slips confirming sales on the Chicago Board of Trade. At the close of the testimony adduced by plaintiffs, the defendant moved for a nonsuit, upon the grounds set out in the “Case,” which motion was granted by the Circuit Judge, for the reasons stated by him, and from his judgment to that effect plaintiffs appeal, upon the several grounds set out in the record — all of which grounds for the motion for a nonsuit, reasons for refusing same, and the grounds of appeal, will be incorporated by the reporter in his report of this case.

This being an appeal from an order of nonsuit, upon the ground stated;- the only question for this Court is, whether there was a total lack of evidence tending to prove all or any one of the material issues in the cas$. The question is — not whether the evidence is sufficient to establish plaintiffs’ case, for that is a question solely for the jury, and we have no right or disposition to invade their province — but solely whether there was any evidence tending to prove' plaintiffs’ case. The first ground of the motion for a non-suit is, that there was no evidence tending to show that the plaintiffs ever advanced any money for the defendant at his request. This is conclusively disposed of by the testimony of both of the plaintiffs who were examined as witnesses, who say that they did make the advances alleged in the complaint for the defendant at his instance and request, only a portion of which has been repaid to them by defendant, leaving a balance still due, for which judgment is demanded. The first ground of the motion for a non-suit cannot, therefore, be sustained; and, indeed, we do not understand that the Circuit Judge based his conclusion upon that ground.

The main controversy is as to the second ground upon which the Circuit Judge did base his conclusion. There can be no doubt that the transactions out of which plaintiffs’ claim arose, and upon which it is founded, were transactions for the sale and purchase of grain for future delivery. Indeed, this does not seem to be questioned in this case. It must, therefore, be controlled by the provisions of the act of 1883, incorporated in the Revised Statutes of 1893 as sections 1859-1863. The terms of this statute and the proper construction to be given to it have been so recently considered and determined in the recent cases of Gist v. Telegraph Co., 45 S. C., 344, and Riordan & Co. v. Doty, mss. decision filed 30th day of September, 1897, that we do not deem it necessary to go over the same ground here, but simply to refer to those cases as expressive of our views upon the subject. The last mentioned case is very much like the present, and is decisive of all the questions presented by this appeal, except the single question whether, in this case, there was any evidence tending to show all or either of the three facts essential to the plaintiffs’ recovery in a case like this. So that the only question necessary to be considered in this case is whether there was any evidence tending to show all or either of those essential facts — not, as we repeat, whether the evidence was sufficient to establish all or either of those facts; for as to that we do not wish to be regarded as intimating any opinion, as that is a question exclusively for the jury, who must decide it untrammeied by anything that we might say. After a careful examination of the testimony in this case, we feel bound to say that there is, at least, some evidence tending to show that the contracts, out of which plaintiffs’ claim arises, were made with a bona fide intention on the part of both parties to the contracts, at the time of making the same, that the grain purchased and sold should be actually delivered in kind at the period in the future specified in such contracts. The allegations of the answer to the contrary are explicitly and emphatically denied by both of the plaintiffs, who were examined as witnesses, and both of these witnesses affirmatively testify that such was the intention of both parties to the contracts at the time they were entered into — the memoranda of sales and purchases furnished to defendant by plaintiffs, at the time such transactions were entered into, contain a statement that “all transactions made by us on the board of trade contemplate the actual receipt and delivery of the property and payment therefor;” and the rules of the Chicago Board of Trade, introduced in evidence, without objection, declare that all transactions of the kind made at the board shall be made on the same understanding. We cannot say, therefore, that there was no evidence tending to establish one of the facts which, under the provisions of the statute, would prevent a contract for the purchase or sale of grain for future delivery from being void. This being so, there was error in granting the motion for nonsuit solely on the ground stated.

The judgment of this Court is, that the judgment of non-suit be reversed, and that the case be remanded to the Circuit Court for a new trial.