Palmetto Guano Corp. v. McCormick

June 28, 1920. The opinion of the Court was delivered by The action is on a note given for the purchase price of 32 tons of commercial fertilizers.

The answer alleged that the ammonia content of the fertilizer was only 2.7 per cent., when the contract was for a 3 per cent. ammonia, and that the ammonia present was noxious because it was derived from a leather product.

The Court directed a verdict for the plaintiff, and the defendant has appealed.

There is a single exception by the defendant, amplified into six subdivisions, but they are all directed to the one action by the Court. That action was this: The defendant offered testimony of the expert witness named Rice to prove that one pound of fertilizer sent to the witness by the defendant contained only 2.7 per cent. of ammonia, that the ammonia contained a leather product, and that the ammonia was probably derived from a leather product.

The testimony was objected to by the plaintiff's counsel "on the ground that it is irrelevant and cannot be admitted for the reason that it attempts to do away with the statute law of South Carolina;" and after reading the statutes the Court excluded the testimony.

The defendant offered no other testimony; and it does not appear that there was other testimony. From the meagre statement in the case, and from the elaborate argument, the defendant's whole reliance was on the competency of the testimony of Rice to prove a deficiency of ammonia and the noxious character of it, and thereby defeat a recovery.

We are not concerned with the grounds upon which the Court excluded the testimony of Rice. We need not, therefore, go into the interesting questions made by the appellant's argument.

There was no testimony to show that the one pound analyzed by the witness, Rice, was taken out of the fertilizer sold by the plaintiff to the defendant. And, had the testimony been admitted, it would only have tended to show that out of 32 tons of fertilizer one pound of it fell short of the ammonia contracted for by only an inconsiderable amount. There is nothing in Rice's testimony which tends to show that the ammonia present was noxious.

We are, therefore, of the opinion that the exclusion of the testimony worked no hurt to the appellant, and for that reason the judgment is affirmed. The exception of the plaintiff to Judge Townsend's interlocutory order thus becomes of no consequence.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and FRASER concur.

MR. JUSTICE HYDRICK did not take part in the decision of this case.