question promptly, acted willfully, intentionally, or wantonly, or with such a frame of mind as would make it liable for punitive damages." The allegations of the complaint are appropriate to an action for punitive damages. In the case of Myers v. Southern Ry. Co., 64 S. C. 514, 42 S. E. 598, the principle is announced that, if the defendant's agent consciously invades the plaintiff's rights, his conduct is willful or wanton, and such as would subject the defendant to punitive damages. In the case of Griffin V. Southern Ry. Co., 65 S. C. 122, 43 S. E. 445, the court says: "It is frequently difficult to tell whether an act of wrong is attributable to willfulness or mere inadvertence, which is the foundation of negligence; and, whenever the facts are susceptible of more than one inference, it is peculiarly the province of the jury to determine such question," These cases are cited with approval in the recent case of Marsh v. W. U. Tel. Co., 43 S. E. 953.

There was testimony tending to show that the defendant's messenger boy did not go to the house in which H. F. Jumper lived when the message was handed to him to be delivered to H. F. Jumper. If he failed to go to the house, and such failure was intentional, the plaintiff was entitled to recover punitive damages. These facts were properly submitted to the jury for its determination.

The ninth exception is as follows: "Ninth. Because it is respectfully submitted that there was no evidence before the jury which justified a verdict against the defendant for actual damages in any sum, and there was no evidence before the jury of any willful, intentional, or wanton conduct, or of a frame of mind on the part of the defendant or its agents which would justify a verdict for punitive damages, and therefore the verdict should have been set aside by his honor on the motion for a new trial." Whether there was any testimony to sustain a verdict is a question of law, but whether the verdict is justified by the testimony presents a question of fact, which cannot be considered by this court.

It is the judgment of this court that the Judgment of the circuit court be affirmed.

(66 S. C. 12)

LYNCH v. SPARTAN MILLS. (Supreme Court of South Carolina. April 8, 1903.)

APPEALABLE ORDER-AMENDMENT OF

COMPLAINT.

1. Plaintiff can appeal from an order requiring him to amend his complaint by stating what of the acts charged were negligent and what willful.

2. In an action by an employé to recover for personal injuries, it is error to require plaintiff to amend his complaint so as to state what of the acts alleged were negligent, what were wantou, what were willful, and what were done in utter disregard of the rights of the plain

tiff, and in what particulars the machinery and appliances became unsound and unfit for use. Appeal from Common Pleas Circuit Court of Spartanburg County; Townsend, Judge. Action by J. H. Lynch against the Spartan Mills. From an order requiring plaintiff to amend his complaint, he appeals. Modified.

The plaintiff appeals from that part of an order requiring him to make his complaint definite and certain in the particulars therein mentioned. The first paragraph of the complaint alleges the corporate existence of the defendant. The other paragraphs of the complaint are as follows:

"(2) That on the 31st day of July, A. D. 1901, plaintiff was employed by defendant company as a picker in its said factory. This duty was to run the picker machine, keep it in clean condition, and sweep the floor around it, and see that it was kept running. That while plaintiff was so engaged in the line of his duty, cleaning one of the pickers on said day, the defendant carelessly, wantonly, willfully, and negligently, and in utter disregard of the rights of plaintiff, caused its belt which connects the wheel of the picker upon which the plaintiff was working with the shafting overhead to break, and the buckle joining the same to come unfastened, thereby causing said belt to jump from the pulleys, and to catch the right arm of plaintiff, with which he was cleaning his machine, drawing said arm onto the wheel, and tearing and lacerating the flesh, breaking the bones therein, and horribly mangling and bruising the entire arm, also wounding his right shoulder and head, causing the plaintiff intense bodily suffering and great mental anguish, permanently injuring the right arm of plaintiff and rendering the same useless for life; to his great damage in the sum of $20,000.

"(3) That defendant company willfully, wantonly, recklessly, negligently, and in utter disregard of the rights of plaintiff failed to furnish a sound and suitable belt and buckle joining the same to run the said picker machine, and connect the same in a safe manner with the overhead shafting, and failed to notify or warn plaintiff of the extra hazard by reason thereof, and through its said failure and negligence, and from no fault of plaintiff, said belt and machinery, through its defects, came apart, and without warning to plaintiff, and while he was in discharge of his duty, caught his arm, drawing it violently onto the wheel and under the belt, breaking the bones therein, and horribly tearing and lacerating the flesh thereon, and rendering the same useless to plaintiff for life, and further bruising and wounding the shoulder and body of plaintiff, causing him intense bodily suffering and great mental anguish; to his great damage in the sum of $20,000.

"(4) That defendant company willfully, wantonly, recklessly, and negligently, and in utter disregard of the rights of plaintiff, fail

ed to inspect the machinery and appliances connecting the machine where plaintiff was at work in the discharge of his duty with the overhead shafting, and by reason thereof the said machinery and appliances became unsound and unsafe and unfit for the purposes for which they are used, thereby causing the injury to plaintiff heretofore described; to his great damage in the sum of $20,000."

The defendant served the following notice of motion:

"(1) Please take notice that on the complaint herein we will move before his honor Judge D. A. Townsend, at Union, S. C., Thursday, 17th April, 1902, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, for an order requiring you to make the complaint herein more definite and certain by alleging and stating definitely and certainly in the second paragraph of the complaint what acts of the defendant were careless, what were wanton, what were willful, and what was done in utter disregard of the rights of the plaintiff, and what act or acts caused its belt to break and the buckle joining the same to become unfastened.

"(2) By alleging in the third paragraph of the complaint what acts of the company were willful, what were wanton, what were reckless, what were negligent, and what was done in utter disregard of the rights of the plaintiff, so as to fail to furnish a sound and suitable belt and buckles joining the same, and in what particulars said belt and buckles were unsound.

"(3) By alleging definitely and certainly in the fourth paragraph of the complaint what acts of the defendant were willful, what acts were wanton, what acts were reckless, and what acts were negligent, and in what manner it failed to inspect the machinery and appliances connecting the machine where the plaintiff was at work.

"(4) By stating definitely and certainly and in what particular the machinery and appliances became unsound and unfit and unsafe for the purposes for which they were used.

"(5) And to extend the time within which to answer."

His honor the circuit judge granted the following order:

"The motion is granted as to the first and fourth particulars.

"As to the second, it is granted as to what acts of the defendant were willful, wanton, or reckless, and as to what acts were negligent, and as to the particulars in which, etc., belt and buckle were unsound. The motion is refused as to the third particular, for the reason that only one act of the defendant is alleged in the fourth paragraph of the complaint, to wit, the failure to inspect the machinery and appliances. It is true that this one act is alleged to have been willful, wanton, and reckless, and also negligent, but there is no motion, or rather no notice of a motion, to strike out any part of said para

graph. Time to answer is extended until the expiration of twenty days after the day of service of the amended complaint herein." The plaintiff appealed upon exceptions assigning error in the following particulars:

"(1) In granting the motion of the defendant as to the first and fourth particulars, thereby holding that the complaint did not state with sufficient distinctness and certainty in the second paragraph of the complaint what act or acts of the defendant were careless, what were wanton, and what was willful, and what was done in utter disregard of the rights of the plaintiff, and what act or acts caused its belt to break and the buckle to become unfastened.

"(2) His honor also erred in holding that the complaint should have stated more definitely and certainly in what particular the machinery and appliances became unsound, unfit, and unsafe for the purpose for which they were used, as these facts are stated with sufficient definiteness and certainty in paragraphs 3 and 4 of said complaint.

"(3) That his honor erred in granting the motion of the defendant in the second particular, thereby requiring plaintiff to state separately what acts of the defendant were willful, what were wanton or reckless, and what were negligent, and as to the particu lars in which the belt and buckle were unsound, as the complaint as a whole alleges with sufficient definiteness and certainty all of the foregoing facts, and further particulars would be a matter of proof, rather than pleading."

Evans & Finley, for appellant. C. P. Sanders, for respondent.

GARY, A. J. When the case was called for hearing in this court the defendant interposed the preliminary objection that the order was not appealable. We will first dispose of that question. The act of 1898, p. 693, is as follows:

"Section 1. That in all actions ex delicto, in which vindictive, punitive or exemplary damages are claimed in the complaint, it shall be proper for the party to recover also his actual damages sustained, and no party shall be required to make any separate statement in the complaint in such action, nor shall any party be required to elect whether he will go to trial for actual or other damages, but shall be entitled to submit his whole case to the jury under the instruction of the court.

"Sec. 2. That in all cases where two or more acts of negligence or other wrongs are set forth in the complaint as causing or contributing to the injury for which such suit is brought, the party plaintiff in such suit shall not be required to state such several acts separately, nor shall such party be required to elect upon which he will go to trial, but shall be entitled to submit his whole case to the jury under the instruction of the court and recover such damages as he has sustained,

whether such damages arose from one or another of such acts or wrongs alleged in the complaint."

In Procter v. Ry. Co., 64 S. C. 491, 42 S. E. 427, it was held that this statute permits the jumbling together in one statement of all acts of negligence and other wrongs. Under section 11 of the Code of Procedure the plaintiff had the right to appeal from said order if it involved the merits. In the case of Blakely & Copeland v. Frazier, 11 S. C. 122, the court uses this language: "The term 'merits' is not very clearly defined. It certainly embraces more than the questions of law and fact constituting the cause of action or defense. As it regards the principles of construction, the necessary means of attaining an end stand upon the same ground of privilege as the end itself. If, then, a party is entitled to an appeal as a means of securing a proper judgment, he is presumably entitled to such appeal in order to secure that without which the judgment could not be rightfully had. The word 'merits' naturally bears the sense of including all that the party may claim of right in reference to his It may be concluded from the foregoing that whenever a substantial right of the party to an action material to obtaining a judgment in such action is denied, a right of appeal lies to this court." The order deprived the plaintiff of the right to jumble in one statement all acts of negligence or other wrongs, and its practical effect was to compel the plaintiff to formulate his allegations so as to set out two or more causes of action. It was, therefore, appealable.

case.

*

We will next consider the question raised by the other exceptions. In Pom. Code Remedies it is said: "The fundamental and most important principle of the reformed pleading, the one from which all the others are deduced as necessary corollaries, is the following: The material facts which constitute the ground of relief should be averred as they actually existed or took place, and not the legal effect or aspects of those facts, and not the mere evidence or probative matters by which their existence is established." (Italics ours.) Section 526 of the same work shows that "those important and substantial facts should be alleged which either immediately form the basis of the primary right or duty, or which directly make up the wrongful acts or omissions of the defendant, and not the details of the probative matters or particulars of evidence by which these material elements are to be established." (Italics ours.) The foregoing language from Pom. Code Rem, is quoted with approval in Bolin v. Ry. Co., 65 S. C. 22, 43 S. E. 665. See, also, Smith v. Smith, 50 S. C. 54, 27 S. E. 545. The exceptions are therefore sustained.

It is the judgment of this court that the order of the circuit court be modified in the particulars hereinbefore mentioned.

(117 Ga. 541)

J. R. COOK & CO. v. FINCH. (Supreme Court of Georgia. April 7, 1903.) SALE-ACCEPTANCE-WAIVER OF DEFECTS.

1. Where property is bought under the implied warranty of the law that it is reasonably suited to the use intended, an acceptance by the purchaser of the property waives all defects which might have been discovered by the exercise of ordinary care and prudence before delivery. In case of an express warranty that the property sold will be of a particular kind and quality, the purchaser has a right to rely on the warranty, and may plead partial failure of consideration, growing out of defects discovered after acceptance, even though they would have become apparent upon an examination before delivery.

(Syllabus by the Court.)

Error from City Court of Macon; W. D. Nottingham, Judge.

Action by B. F. Finch against J. R. Cook & Co. Judgment for plaintiff, and defendants bring error. Affirmed.

Hardeman & Moore, for plaintiffs in error. J. E. Hall and R. D. Feagin, for defendant in error.

COBB, J. Finch brought suit against Cook & Co. for $150 on an open account for 100 cords of pine wood, at $1.50 per cord. The defendants pleaded that they had made a contract with plaintiff to furnish them with 100 cords of pine wood at $1.50 per cord; the wood to be delivered on the right of way of a railroad, and to be loaded by defendants on the cars. The plea further alleged: Without notice to defendants, and in violation of the contract, plaintiff had 794 cords of green pine wood loaded on 10 cars, averaging 8 cords to the car, whereas 10 cords should have been put on each car; freight and trackage being charged by the car, and not by the cord. Defendants had sold the wood to Stratton's Brickyard for $2.75 per cord, and, on account of the failure of plaintiff to comply with his contract, defendants lost $38.75-the amount of profits which they would have made on their contract for the sale of the wood. The wood was bought by defendants from plaintiff for immediate use as firewood, and plaintiff well knew this fact, and that the wood actually furnished was unsuited to the use intended; the wood delivered being worth only 75 cents per cord on the right of way of the railroad. The wood was conveyed on the cars to Stratton's Brickyard, and the persons in charge of the yard refused to take it, on account of its green condition. The defendants thereupon put the wood on the market, and sold 5 cars of it for $79.50, and 5 cars for $94; making a total of $173.50. From this amount defendants claim the right to deduct $82.50 expended for freight, $10 for trackage to the brickyard, and $15 for trackage from the brickyard to the points where it was sold by them. They claim also the right to deduct $38.75, the amount of profits

alleged to have been lost by reason of the failure of plaintiff to comply with his contract; thus leaving a balance of $27.25, which is admitted to be due, and which is tendered to plaintiff in full settlement of the contract. The evidence substantiated the material allegations of the plea as to the character of the contract between plaintiff and defendants. There was evidence that the wood was delivered on the right of way of the railroad in accordance with the contract, and was subsequently loaded on 10 cars, and shipped to the defendants, at Macon, and side-tracked at Swift's Creek, a few miles below Macon. When notified that the cars were at that place, the defendants paid the freight, and ordered the wood shipped to Stratton's Brickyard. When the evidence is considered as a whole, it demanded a find. ing that the defendants received only 80 cords of wood. While plaintiff does testify that he shipped 100 cords, his testimony shows that he was at home, sick, when the wood was shipped; and he says 100 cords were shipped, because the pile of wood from which they were taken consisted of "about 112 or 115 cords," and after the shipment he "estimated there were 12 or 15 cords left on the ground." In view of other evidence, positive and direct in its character, that there were only 80 cords on the cars, a finding that there were 100 was not warranted. There was some conflict in the evidence as to the quality of the wood, the person who bought five cars of the wood from the defendants testifying that it was "half dry," and burned very well in a brick kiln, while there was evidence that all of the wood was green, the twigs having green straw on them. The evidence also demanded a finding that the wood was sold by the defendants at the prices mentioned in their plea, and that they paid the amounts claimed to have been paid for freight and trackage. The evidence further showed that the defendants never saw the wood, except when it was on the train going to Stratton's Brickyard. The jury returned a verdict for the plaintiff for $150 principal and $13.56 interest, and, defendants' motion for a new trial having been overruled, they excepted.

Complaint is made that the court erred in charging the jury as follows: "There is a duty on purchasers to discover any defect that may be ascertained by, ordinary diligence, and if you find that the defendants, by the exercise of ordinary diligence, could have discovered the defects in the wood, if there were any defects, before the same was delivered, then I charge you the defendants are estopped from setting up such defects as a defense." And also in charging: "If there were defects in the wood, and the defendants could not, by the exercise of ordinary diligence, have discovered the defects before delivery, you would be authorized to reduce the agreed price to what the wood was worth in the market." The plea of the

defendants, properly construed, did not set up an express warranty by the plaintiff that the wood would be dry pine, and it is clear that no such warranty was shown by the evidence; one of the defendants testifying that "there was nothing particular said about whether the wood was to be green or dry." There was, however, an implied warranty, raised by the law, that the wood was reasonably suited to the use intended; and, according to the evidence, it was intended to be used as firewood. The Code provides that, "if there is no express warranty, the purchaser must exercise caution in detecting the defects." Civ. Code 1895, § 3555. “An implied warranty of the fitness of property sold for ordinary use does not embrace defects discoverable by ordinary care." Hoffman v. Oates, 77 Ga. 701. "The law of implied warranty will not avail against patent defects, nor against latent defects which are either disclosed, or are discoverable by the exercise of caution on the part of the purchaser." Lunsford v. Malsby, 101 Ga. 41, 28 S. E. 496. "The law imposes upon the vendee the duty of exercising caution in detecting defects, and hence it is a well-established rule that where the defect is patent, or could have been discovered by the exercise of ordinary diligence, there can be no recovery upon the ground of implied warranty." Snowden v. Waterman, 105 Ga. 387, 31 S. E. 110. It follows, therefore, that, where goods purchased under an implied warranty that they are reasonably suited to the uses intended are accepted by the vendee, he will be precluded from pleading, in an action on the contract of purchase, a partial failure of consideration, growing out of any patent defects in the goods, or any latent defects which might have been discovered before the sale by the exercise of ordinary care and prudence. Even an inspection, however, will not deprive the purchaser of the protection of a warranty as to latent defects which could not have been discovered by the exercise of ordinary prudence. Miller v. Moore, 83 Ga. 684, 692, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329. But where a purchaser receives goods without inspecting them, or inspects them in a careless and indifferent manner, he will not, when sued on the contract, be heard to set up defects which he would have discovered before the delivery and acceptance of the goods, had he used proper diligence. Where, however, there is an express warranty that goods sold will be of a particular kind and quality, the purchaser has a right to rely on this warranty, and an acceptance will not prevent him from pleading the defective condition of the goods. The rule that the purchaser must exercise caution in detecting defects is, by the very terms of the section of the Code cited above, confined to cases of implied warranty. See, also, in this connection, Miller v. Moore, supra, and Snowden v. Waterman, supra. Civ. Code 1895, § 3557, provides that "after ac

ceptance of goods purchased the presumption is that they are of the quality ordered, and the burden is on the buyer to prove the contrary. Partial payments with knowledge of the defective condition will not estop the buyer from pleading partial failure of consideration." We think it is clear that this section relates to cases of express warranty. The use of the words "of the quality ordered" necessarily implies that there was an express understanding between the parties that the goods would be of a particular quality. See Atkins v. Cobb, 56 Ga. 86 (5), 89, from which the section of the Code just quoted was codified. See, also, Florence v. Pattillo, 105 Ga. 581, 32 S. E. 642.

Applying what is said above to the facts of this case, we think the charges given by the court were correct expositions of the law, and were adjusted to the issues raised by the pleadings and the evidence. There being no express warranty that the wood sold the defendants would be dry pine, and they having accepted it without an inspection, they are precluded from pleading as a defense that the wood was in fact green pine, and not dry pine. This was manifestly a patent defect, which would have been disclosed by the most casual inspection; the evidence in behalf of the defendants showing that the twigs had green straw on them. The sale was.completed when the wood was delivered on the cars, the plaintiff having at that time performed everything that he contracted to do. The fact that it was not convenient for the defendants to go down and examine the wood is no fault of plaintiff's. Having bought on an implied warranty, they took the risk, when they accepted it and ordered it shipped forward, that it would prove reasonably suited to the use intended. And even if, under the facts of the case, they were under no duty to inspect the wood until after it was side-tracked a few miles below Macon, it does not appear that they made the slightest effort to examine it then or at any other time. So far as appears from the evidence, they never did make an inspection of the wood. And even after the persons who had bargained with them for the wood had refused to accept it, the defendants acted on the assumption that they were bound by their contract with plaintiff, and actually sold the wood in the market at a reduced price. Under these circumstances, the plaintiff is not chargeable with the expense incurred in conveying the wood to the brickyard, and from there to the points where it was delivered to the purchasers from the defendants. As stated above, however, the evidence demanded a finding that the defendants received only 80 cords of wood. Acceptance would not prevent them from pleading this defect in quantity, as there was an express warranty that the amount furnished would be 100 cords. The defendants are therefore liable to plaintiff for the value of 80 cords of wood, at the contract price per 44 S.E.--7

cord. Direction will be given that if the plaintiff will write off from the amount recovered the sum of $30, with interest thereon for the time interest was calculated on the principal amount of the verdict, the judgment of the court below, refusing to grant a new trial, stand affirmed, and that, if this is not done, the judgment be reversed; the costs of this writ of error and of the motion for a new trial to be taxed, in either event, against the defendant in error.

Judgment affirmed, on conditions. All the Justices concurring, except LUMPKIN, P. J.. absent on account of sickness.

(117 Ga. 567)

GEORGE D. MASHBURN & CO. et al. v. DANNENBERG CO.

(Supreme Court of Georgia. April 8, 1903.) SALE ON CREDIT-REPRESENTATIONS AS TO SOLVENCY FRAUD RIGHTS OF VENDEESALE TO BONA FIDE PURCHASER-RESCISSION-ANTECEDENT DEBT-MORTGAGEE OF

VENDEE PURCHASER AT FORECLOSURELIS PENDENS-CONVERSION-CONTRIBUTION

-DAMAGES.

1. Whether such a time has elapsed after a statement to a commercial agency of a person's financial ability that no one should act thereon as a basis of credit, cannot be fixed by any arbitrary rule, but must be determined in each case according to its circumstances.

2. Where several such statements are made, and at the time the credit is extended some of them were too old to be acted on, and others not, but credit is extended on each, in order to reclaim the goods sold it is incumbent on the seller to show that they were sold on the faith of the statements which had not become stale.

3. Representations as to financial standing and worth, made to induce a sale on credit, when acted on by the seller to his injury, will, if untrue, constitute such a fraud as will avoid the sale, at the option of the seller, though the buyer did not know they were false.

4. A vendee who has obtained title to property under a sale induced by fraud is the owner of the property until the seller elects to rescind the sale, and a bona fide purchaser, without notice of the fraud from such a vendee, will acquire a good title.

5. The right of the seller to rescind the sale for fraud is superior to the right of a mortgagee whose mortgage was taken to secure an antecedent debt.

6. An antecedent debt, within the meaning of the rule just stated, is a debt contracted before the sale sought to be rescinded.

7. The right of the seller to rescind the sale and reclaim the goods is inferior to the rights of a mortgagee of the property, whose debt was created after the sale, and upon the faith of the mortgagor's ownership, and without notice of the fraud which had been perpetrated upon the seller; and in such a case it would be immaterial whether the creation of the debt and the execution of the mortgage were contemporaneous, or the creation of the debt antedated the mortgage, provided the mortgage was taken before the right of rescission was exercised, and without notice of the fraud.

8. What would be the status of a mortgagee who extended credit without notice of the fraud, but who had notice at the time the mortgage was taken, is not now decided.

9. In a suit by the seller, brought to rescind the sale and reclaim the goods, against a mortgagee of the vendee, the plaintiff carries the

5. See Chattel Mortgages, vol. 2, Cent. Dig. § 238.