Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1903-02-11
BROOKE VS.. HILL.

The following synopsis Of the su-
preme court opinion in the case of
Brooke VS.. Hill, which recently went
up from this county, is from the Co.
lumbia State Of last Monday:
Geo. w. Brooke, Respondent, v. w
L. Hill, Appellant.-Pleading. Eyi-
dence. Contract Of sale. Shipment
with bill.
This was an action for $142.6O dam
ages alleged to have been suffered by
the plaintiff by reason Of the defend
ants refusal to receive a carload OF
tiff to the defendant on the order OF
the latter. The defendant pleaded that
the flour was, under the contract OF
the parties, to be tested on its arrival
and before 1t should be paid for; that
the plaintiff shipped the same with
directions that the defendant should
receive the bill Of lading therefor when
he should have made his promissory
note accompanying said billy for the
purchase price Of said flour; that the
flour was adulterated with corn meal;
and that the plaintiff had suffered nc
loss by reason Of his sale Ito the de-
fendant) Of said -four for price lower
than that for which the same had been
(Judge Watts presiding) found for the
plaintiff $10S.76, and from the judg-
ment accordingly entered the defend
ant appealed.
AS it appears, from the evidence,
that when the defendant objected to
the manner in which the flour had
been shipped the plaintiff notified him
that he had instructed the bank to
send to him the bill Of lading and he
made no effort to get it, and as the
testimony also shows that the defend
ant sampled the -four in question, the
charge Of the trial judge, that in his
opinion 1t made no difference whether
the plaintiff shipped the flour direct
to the defendant or shipped 1t In his
own name with bill Of lading attached,
1t being incumbent upon the plaintiff
to ship the flour in accordance with
the contract" taken In connection with
other parts Of the charge upon the
question submitted to the jury, was
not prejudicial to the defendant.
AS to the allegation Of the answer,
touching the defendants opportunity
to examine the flour in question, was
have been controverted by the plain
tiff as upon direct denial. Code, sec.
189.
That witness for the plaintiff tes-
titled to said allegation did not have
the effect of an admission Of the fact,
and the trial judge cannot be said to
have misled the jury by using the
words If the contract was that he
(plaintiff) give the defendant an op-
portunity to examine the 1our"-es-
pecially as the defendants own testi-
mony showed that he had had the op-
portunity to examine.
AS there was some testimony that
the defendant had the opportunity to
examine said flour, the trial judge did
not err in charging that If the defend
ant had such opportunity and yet re-
fused or neglected to examine the
same the defendant would be bound
to pay for it,
AS the only objection which the de-
fendant made AS to the manner Of
shipment was that he was deprived Of
the opportunity Of examining the
flour, and as the testimony showed
that he had such opportunity, the trial
judge did not err in using the words
Tin his charge to the jury) If the con-
tract was that he give the defendant
an opportunity to examine the -four"
AS there was some testimony to the
effect that the opportunity to examine
was afforded the defendant, the ver-
dict cannot be said to have been con-
trary to the law as charged by the
trial judge on the question of oppor-
tunity.
The trial judge did not err in charg-