Ohio Pottery & Glass Co. v. Tolbert

March 11, 1912. The opinion of the Court was delivered by This was an action for goods sold and delivered to defendant by the plaintiff. The defendant acknowledged having received the goods but pleaded payment. The defendant claims that he paid for the goods and paid the agent from whom he bought. The plaintiff denied that the agent to sell had any authority to receive payment.

There was a verdict for the defendant. Plaintiff appealed. The following are the exceptions:

1. "We most respectfully submit that it was error of law in his Honor to refuse the motion for a new trial when the record shows there was not a scintilla of evidence going to establish the fact that Bayol was the agent for the plaintiffs for the purpose of collecting the account in dispute, but on the contrary, the positive testimony of the plaintiffs established the fact that Bayol was not the agent of the plaintiffs for that purpose.

2. "It is most respectfully submitted that the jury disregarded the charge of his Honor and it was error of law to refuse the motion for a new trial.

3. "It is most respectfully submitted that the testimony of the defendant shows conclusively that Bayol was the agent of the defendant when he received the purchase price for the bill of goods and was not the agent of the plaintiffs and it was error of law for his Honor to refuse to set aside the said verdict of the jury and order a new trial."

The question of no evidence is a question of law, but this Court has adopted and published the following rule, 75 S.C. p. 572: * * * "the point that there is no evidence to support a defense shall be first made by a motion to direct a verdict."

No such motion was made and this exception cannot be considered.

The second and third exceptions were not considered in the argument, and therefore, they are deemed abandoned.

The judgment of this Court is that the judgment appealed from is affirmed.

MR. JUSTICE WATTS, disqualified.