Simmons Mfg. Co. v. Whitton Auto. Parts Co.

January 27, 1928. The opinion of the Court was delivered by This is an appeal from an order of his Honor Judge Whaley, of the County Court of Richland County, striking out the defendant's answer as sham and frivolous and awarding judgment in favor of the plaintiff.

The action was commenced on June 18, 1927, and the answer was served on June 28, 1927. The cause of action was a draft of the plaintiff upon the defendant for $440.20, dated April 8, 1927, payable June 5, 1927, and accepted by the defendant on April 23, 1927.

The answer denied the corporate capacity of the plaintiff; admits the corporate capacity of the defendant; admits the accepted draft; alleges payment; and denies any indebtedness to the plaintiff on account of the draft.

Upon the hearing of the motion to strike out the answer as sham and frivolous, the plaintiff presented the affidavit of the attorney Hunter A. Gibbes, Esq., to the effect that after the action was commenced and before July 2, 1927, the defendant claimed to have paid the draft; that nevertheless on July 2, 1927, the defendant transmitted to him in payment of the draft a bank check for the exact amount; that the check was presented to the bank and payment refused on account of insufficient funds; that repeatedly thereafter the defendant promised to take up the check, but never did so. The check was offered in evidence.

Under these circumstances the question was one of fact for the presiding Judge, and we agree with his conclusions.

The denial of the corporate capacity of the plaintiff did not sufficiently put that fact in issue. Bank v.Yarborough, 120 S.C. 385; 113 S.E., 313. See upon the subject of motion of the present character: Burkhalter v. Townsend, 139 S.C. 324; 138 S.E., 34; People'sBank of Hartsville v. Easterling, 139 S.C. 286;137 S.E., 740; So. Cotton Oil Co. v. Bryant, 136 S.C. 453;134 S.E., 508, and cases cited.

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

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.