Harry v. Barnett

July 15, 1919. The opinion of the Court was delivered by This is an appeal from a judgment in favor of respondent for $300. The cause was tried before Judge Sease, and a jury, at the Spring term of Court, 1917, for Sumter county. After entry of judgment defendant appeals, and by seven exceptions imputes error.

The issues raised by the exceptions are: (1) Did his Honor violate the constitutional inhibition against a charge on the facts by his remark during the introduction of testimony, as complained of in the exceptions? This exception is overruled. It will be seen by reference to what his Honor said when he made the remarks complained of that immediately afterwards, when counsel of defendant said, "He made it and I have got the written contract in Court," his Honor said, "Of course, if written, he is bound by it." This cured anything that might have been prejudicial to the defendant by the previous remark of his Honr. If there was anything prejudicial in it. It is certainly not within the principle laid down by this Court in State v. Arnold, 80 S.C. 383,61 S.E. 891; Latimer v. Electric Co., 81 S.C. 379, 62 S.E. 438;Stokes v. Murray, 99 S.C. 221, 83 S.E. 33.

The exceptions raise as a second issue, Did his Honor err in the construction of the contract? This exception is overruled. His Honor was correct in the construction of the contract between the parties.

The exceptions further raise the question that his Honor erred in overruling the motion for a new trial. The evidence shows that in 1914, from the cotton made, plaintiff was entitled to 9 tons of cotton seed, that 5 tons, or the equivalent in meal, was used, 2 1/2 tons were furnished by each the plaintiff and defendant, and that defendant did not give the plaintiff the balance of the seed that belonged to him, but retained them and converted them to his own use; that the plaintiff was entitled to 6 1/2 tons of seed, which he never received. There is testimony that seed were worth $65 to $70 per ton, and ample evidence to sustain the jury in their finding as to the measure of damages.

All exceptions are overruled, and judgment affirmed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK and GAGE concur.

MR. JUSTICE FRASER. I dissent. I think his Honor went too far. He said that such a contract would amount to peonage. The plaintiff still denied the contract, and the statement materially affected the question of fact as to whether the plaintiff did or did not make the contract.