Richmond Guano Co. v. Kirkpatrick ( 1919 )

The defendant pleaded failure of consideration; also fraud, and a counterclaim for damages. Paragraphs 3 and 4 of the answer, which will be reported, contain the allegations of fraud. There was testimony tending to sustain these allegations, but his Honor, the presiding Judge, ruled that fraud was not a defense to this action, and could not prevent a recovery upon the notes.

The note must be construed as if the provisions of chapter 34, article 1, of the Code of Laws of 1912, were embodied in them, as a part of the contract between the parties. Phosphate Co. v. Arthurs, 97 S.C. 358,81 S.E. 663. In that case it was held that, if fertilizers did not come up to weight and guaranteed analysis and were not actually delivered in kind according to contract, recitals in a note for the purchase price as to the weight, that such sack bore the guaranteed analysis, that it bore inspector's tag, and that the seller had neither impliedly nor expressly warranted the effects on the crops, and an agreement therein that the buyer could not hold the seller responsible for practical results, were attempts to dispense with the statutory requirements, and, therefore, void. That case did not rest upon fraud, but upon the ground that such recitals were against public policy — citing the case of McConnell v. Kitchens,20 S.C. 430, 47 Am. Rep. 845.

We also have cases directly in point arising under chapter 34, art. I, of the Code of Laws of 1912, announcing the principle that fraud will render a contract for fertilizers void, to wit: Germofert v. Castles, 97 S.C. 389,81 S.E. 665; Germofert v. Delleney, 97 S.C. 395, 81 S.E. 667;Germofert v. Scruggs, 97 S.C. 396, 81 S.E. 667. The same principle applies in other cases. Welborn v. Dixon,70 S.C. 108, 49 S.E. 232, 3 Ann. Cas. 407. Indeed, we cannot recall any case, certainly in this State, in which our Courts have held that a party perpetrating a fraud was not liable for the consequences of his wrongful act.

For these reasons I dissent.

MR. JUSTICE FRAMER concurs in the dissenting opinion of MR. CHIEF JUSTICE GARY.