Atlantic Phosphate Co. v. Sullivan

Citations

• 34 S.C. 301
• 13 S.E. 539
• 1891 S.C. LEXIS 58

Syllabus

<p>1. A Reply to a Counter-claim in these words: “The plaintiff replying to the counter-claim set up in the answer of defendant herein, denies the same,” is sufficient to put in issue all the allegations upon which the counter-claim rested.</p> <p>2. AVritten Contract — Two Papers. — A sub-agent of the plaintiff made to defendant a written offer to sell for plaintiff’s account 100 tons of fertilizers at a price stated, “with the privilege of 200 tons more at same prices if in stock unsold, when wanted,” but it was expressly stipulated that this offer “was subject to the approval of the general agents.” Defendant accepted the offer, and it was marked approved by the general agents and returned to defendant, accompanied with a letter from the sub-agent, written by direction of the general agents, stating that plaintiff could not promise to furnish more than the 100 tons, on account of recent large sales. After this defendant received and used the 100 tons, but failed to get any more, and had to purchase elsewhere at higher prices, to meet engagements made by him. Held, that plaintiff was not bound by contract to furnish more than 100 tons, and therefore not liable to defendant for failing to ship the additional 200 tons wdien wanted.</p> <p>3. Ibid. — Ibid.'—The'letter of the sub-agent above referred to accompanying the approval of the general agents, -was properly received in .evidence — not for the purpose of contradicting the contract, but as a part thereof.</p> <p>4. Contracts — Request to Charge. — Under request to charge that plaintiff was liable for damages sustained by defendant by reason of plaintiff’s failure to ship the 200 additional tons, if the same were on hand or could have been shipped, the trial judge did not err in adding, “If the evidence satisfies you that the plaintiff had 200 tons on hand and unsold, and refused to ship it, if it was bound under the contract to ship.” Nor would a refusal of the request have been error, as plaintiff', by buying,