11003

#### BROOKS v. FLOYD

(113 S. E., 490)

1. Trial — Direction op Verdict for Plaintiff Held Improper, Where There is Evidence to Support Defense of Dependant. — Where there is any evidence tending to support the defense interposed by defendant, the Court cannot properly direct a verdict for plaintiff.

2. Trial — Evidence Should be Construed Most Strongly in Favor op Dependant on Motion for Directed . Verdict by Plaintiff.— On motion for directed verdict by plaintiff, defendant is entitled to have the evidence considered and construed most strongly in his favor.

3. Sales — Evidence as to Discharge, op Buyer From Liability Held Sufficient to go to .the Jury. — In seller’s action for the invoice price of a shipment of goods, evidence that, after receiving notice from the buyer that the shippment had not been delivered, the seller accepted the shipping papers, issued the buyer a written memorandum, crediting his account with the full invoice price of the goods, undertook to collect the freight claim from the carrier, and some 15 months afterward attempted to charge the amount back to defendant buyer, *held*sufficient to'go to the jury on the issue whether seller had discharged or released buyer from liability.

4. Appeal and Error — Exception not Argued Deemed Abandoned.— Where an exception is not argued, it will.be deemed abandoned.

5. Appeal and Error — Exception to Refusal to Give an Instruction Will not be Considered, Where the Instruction is not Set Out in the Record. — An exception to the refusal to give a requested instruction cannot be considered, where neither the instruction nor any portion of the judge’s charge is set out in the record.

*357Before Gary, J., Marion, fall term, 1921.

Affirmed.

Action by J. W. Brooks against E. C. Floyd. Judgment for defendant and plaintiff appeals.

*Mr. M. C.*Woods, for appellant.

No citations.

*Mr. A. F. Woods,*for respondent,

cites: *Claim properly assignable:*20 S. C., 139. *Force and effect of receipt was for the jury: 78*S. C„ 302; 2 McC., 418; 94 S. C, 212; 107 S. C., 250; 109 S. C., 105. .

September 1, 1922.

The opinion of the Court was delivered by

Mr. Justice Marion.

Appellant, the plaintiff in the "Court below, brought action against the defendant to recover the invoice price of a shipment of snuff. Defendant admitted the purchase, but denied that the goods had ever been received, and alleged that, .in consideration of his release to the plaintiff of the claim against the transportation company for the loss of the shipment, plaintiff had discharged him from any liability on account of the purchase. In apt time plaintiff’s counsel moved for the direction of a verdict, substantially upon the ground that defendant had entirely failed to establish his alleged defense of a release or discharge from liability. From judgment on verdict in favor of the defendant, plaintiff appeals upon exceptions which raise the one question of whether the Circuit Judge erred in refusing to direct a verdict in plaintiff’s favor.

1,2 Under the well-settled rule, if there was any evidence tending to support the defense interposed by defendant, the trial Judge could not properly have directed a verdict. Under the equally well-settled rule, on such motion defendant was entitled to have the evidence considered and construed most strongly in his favor.

*358
      3 We have very carefully examined and considered all the evidence in the light of appellant’s contentions, with the result that we are'satisfied the cause1 was properly submitted to the jury. The plaintiff, after receiving notice from defendant that the shipment purchased had not been delivered, accepted the shipping papers, issued the defendant a written memorandum, crediting his account with the full invoice price of the goods, undertook to collect the freight claim from the carrier, and some 15 months afterward attempted to charge the amount back to defendant, upon the ground that the credit previously given defendant was conditional. Neither a review of the evidence in detail *nor a qualitative analysis thereof for “reasonable interference” would serve any useful purpose. The evidence made an issue of fact for the jury under appropriate instructions of the Court.

4, 5 Appellant’s second exception, directed to alleged error of the Circuit Judge in refusing to charge one of plaintiff’s requests, was not argued, and we assume was abandoned. It has not been considered for that reason, and for the additional reason that1 neither the requested instruction nor *any*portion of the Judge’s charge is set out in the record.

The judgment of the Circuit Court is affirmed.