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"I never have got him that far along. Q. Why didn't you have him to give you his note? A. I never have gotten him that near a settlement, sir."

The statute declares what sums of money shall draw interest. Code, sec. 2516. Before that enactment there was much contrariety of opinion about when interest is allowable. The statute does not embrace in its terms a transaction like this. The sum of money here was not “ascertained” by plaintiff's own testimony; nor is this an "account stated." The fertilizers were sold and delivered at separate days. There were many payments made by defendant on separate days. There is no evidence that the defendant acknowledged any statement of the account to be true, and to be then due. There is no testimony that the defendant was furnished with a copy of the account before the action was begun. The essence of an account stated is: (1) That the account be actually stated; and (2) that the parties thereto shall agree expressly or impliedly that it is a true statement, and is due to be paid, then or at some other specified time.

In the case at bar the plaintiff testified, "I have tried again and again to get a settlement out of him." There is no testimony that the defendant ever expressly or impliedly agreed that he was at any specified time due and owing the defendant any specified sum of money.

We are, therefore, of the opinion that the Court should have charged the jury that the interest was not allowable. The sum of $442.23, which the jury found as interest, must, therefore, be remitted, on the record by the plaintiff, within

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November Term, 1914.

9010

ASHE ET AL. V. STANDARD OIL CO.

(84 S. E. 412.)

TRIAL. TAKING CASE FROM JURY. DIRECTION OF VERDICT.

Where there is any competent, relevant evidence to go to the jury that

presents any issuable fact pertinent to the case from which more than one inference can be drawn, it should be left to the jury.

Before BOWMAN, J., Orangeburg, June, 1914. Reversed.

Action by Annie E. Ashe and another against the Standard Oil Company.

The complaint alleged, inter alia, that the plaintiff, Annie E. Ashe, was grievously injured and wounded, having been kicked in the stomach and knocked down by a mule belonging to the defendant while such mule was hitched to its delivery wagon, and while standing in a traveled way in the city of Orangeburg, such mule being unhiţched and unattended at the time.

From judgment for defendant, plaintiff appeals. The facts are stated in the opinion.

Messrs. Wolfe & Berry and Raysor & Summers, for appellant, submit: There was testimony to support allegations of complaint: 81 S. C. 354. As to negligence in managing team: 1 R. C. L. 1094; 148 Mass. 91; 18 N. E. 680; 45 Am. Rep. 400; 25 R. I. 451; 1 Ann. Cas. 204, 205; 1 Bevan Neg. (2d ed.) 97. Leaving team unhitched and unattended: 94 Mo. 362; 147 Pa. 178; 74 N. Y. Sup. 574; 5 AU 2017? Win 427

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sec. 589; 14 Ann. Cas. 624; 52 N. E. 518. Circumstances to be considered: 1 R. C. L. 1109, 1110; 39 Colo. 148; 8 L. R. A. 1001; 105 Mass. 342; 72 N. J. L. 530; 5 Ann. Cas. 874. Ordinary care: 28 Ind. 334; 2 L. R. A. (N. S.) 1189, and note. Propensity of mule to kick: 42 Ill. App. 186; 2 Cyc. 368, 369. Proximate cause question for jury: 62 S. C. 130; 61 S. C. 404. So contributory negligence: 1 R. C. L. 1111; 104 Am. St. Rep. 958; 5 Ann. Cas. 879, note.

Messrs. I'illcox & W’illcox, Henry E. Davis and S. W. Wetmore, for respondent, submit: Domestic animals, such as oxen or horses, may injure the person or property of another, but Courts of justice invariably hold that, if they are rightfully in the place where the injury is inflicted, the owner of the animal is not liable for such an injury, unless he knew that the animal was accustomed to be vicious; and in suits for such injuries, such knowledge must be alleged and proven, as the cause of action arises from the keeping of the animal after knowledge of its vicious propensity.15 Mills & V. 563; 1 N. Y. 515; 5 C. B. 632; 6 Exch. 697; 92 B. 100; 22 Wis. 73; 13 C. B. (N. S.) 430. The owner of ordinary domestic animals is not liable for injuries which they do to another, unless the animal was accustomed to injure persons or had an inclination to do so, to the knowledge of the owner: 22 Ala. 568. If the animal is in a place where it had the right to be, then the plaintiff must show that the animal was vicious and also show that defendant was chargeable with notice of the fact: 51 Am. St. Rep. 62; 95 Ga. 108; 69 Am. St. Rep. 99; 44 Me. 322; 49 Am.

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This was an action by the plaintiffs against the defendant for damages for personal injuries alleged to have been sustained by the plaintiff, Annie E. Ashe, wife of Jacob E. Ashe, by reason of negligence of the defendant. The action was for actual and punitive damages. The cause was heard before his Honor, Judge Bowman, and a jury, at the June term of the Court, 1914, for Orangeburg county, and after all of the testimony, both for plaintiff and defendant, was in, defendant moved for a direction of verdict in its favor upon several grounds. After argument the Court directed a verdict in favor of defendant, whereupon plaintiffs appeal, and by nine exceptions allege error on the part of Circuit Court in so directing a verdict, and contend that there was sufficient evidence to carry the case to the jury.

It is not necessary to consider the exceptions seriatim, because the law is so plain that, if there is any competent, relevant evidence to go to the jury that presents for them any issuable fact pertinent to the case from which more than one inference can be drawn, then it should go to the jury for their determination. After a careful study and analysis of the evidence of the whole case, and especially that of the plaintiff, we are constrained to hold that there was at least one point that the jury should have passed upon; it was for them to determine from all the facts, surroundings, circumstances, and evidence in the case: Was there any negligence on the part of defendant in placing its wagon and team of mules where it placed them and leaving them unattended as testified to ?

The verdict must be set aside and reversed.

MR. JUSTICE GAGE, dissenting: I dissent. The plaintiff testified Mr. Dukes, the driver, was at the back of the wagon

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PARTITION. SALE. REFUSAL OF PURCHASER TO PERFORM. LIABILITY.

A purchaser at partition sale of a tract in gross may not be relieved

from liability on the ground that a part of the tract had been taken to widen a street, where no one having the right so to do had given any part for a street, and where the municipality had never acquired the same by condemnation.

Before Prince, J., Spartanburg, September, 1913. Affirmed.

Action for partition by Margaret M. Wertz, as executrix, and in her own right, against J. B. Wertz and others. From an order compelling R. E. Cudd, purchaser, refusing to perform his purchase, to pay the loss sustained on a resale, he appeals.

The following is the order of Circuit Judge Prince:

The plaintiff and defendants were tenants in common of a lot of land on North Liberty street, in the city of Spartanburg. It was left to them by their father and grandfather, J. B. Wertz, at the termination of a life estate given in the will of said J. B. Wertz to his wife, Maggie L. Wertz. This action was brought for the purpose of partition, and under a decree of the Court the property was advertised and exposed for sale by the master on November 4, 1912.

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