Opinion
7998
August 10, 1911.
Before J. WM. THURMOND, Special Judge, Hampton, June, 1910. Affirmed.
Action by Gibbes Machinery Company against W.T. Hamilton and International Harvester Company of America. Defendant Hamilton appeals.
Messrs. T.A. Hamilton and B.R. Hiers, for appellant, cite: Judge should not refer issues for trial without consent: 64 S.C. 293; 34 S.C. 169. Issues here should be tried on calendar of issues of fact: Code of Proc. 272; 25 S.C. 80.
Messrs. W.S. Smith and C.B. Searson, contra. Mr. Townsend, oral argument for Mr. Smith.
August 10, 1911. The opinion of the Court was delivered by
In an action for foreclosure by the assignee of a mortgage given to secure the purchase price of machinery, defendant, the mortgagor, denied the allegations of the complaint, and set up, as affirmative defenses, misrepresentation and breach of warranty of the condition of machinery, failure of consideration, and a counterclaim for damages for fraud and collusion between plaintiff and his assignor, the original mortgagee, in obtaining the mortgage from defendant. Held, that defendant was not entitled to a trial by jury. Bouland v. Garpin, 27 S.C. 235, 3 S.E. 219; McLaurin v. Hodges, 43 S.C. 187, 20 S.E. 991; Pratt v. Timmerman, 69 S.C. 186, 48 S.E. 255.
Affirmed.