February 15, 1919. The opinion of the Court was delivered by This case was tried before Judge DeVore, and a jury, at the February term of Court, 1918, for Fairfield county. After all of the testimony was taken, his Honor directed a verdict for the plaintiff. After entry of judgment thereon, defendant appealed. *Page 473

Exception 1 alleges error in his Honor directing a verdict, when there was abundant evidence on the question of fraud to carry the case to the jury on this issue, and also, under the statute, the defendant could not prove fraud, either as a defense or by way of counterclaim. His Honor ruled out the evidence offered to show the effect the fertilizer had on defendant's crop, holding that the statute law of this State provided an exclusive remedy for the sale of fertilizers deficient in ingredients guaranteed by analysis, or short in commercial value, either one or both, and, having fixed a measure of damages to cover every possible deficiency, or shortage, this remedy must be followed. His Honor also held, where there was a deficiency or shortage in the value of commercial fertilizer, the measure of damage was prescribed by statute, and that an allegation of fraud by the purchaser could not have the effect of admitting testimony showing the results on crops by the use of the fertilizer. We see no error in this ruling. There was no evidence of fraud to go to the jury. The proof was plain as to how the fertilizer sold turned out, as to the guaranteed analysis, and its shortage in value made it only a matter of calculation. This disposes of exceptions 1, 2 and 3, which are overruled.

Exceptions 4 and 5 are overruled. We see nothing in his Honor's ruling whereby defendant was prejudiced.

Judgment affirmed.

MR. JUSTICE HYDRICK. I concur in affirming the judgment on the ground that, under the evidence, the verdict of any fair jury would have been the same as that directed by the Court. I agree with Mr. Justice Watts that the evidence was not sufficient to require the Court to submit the issue of fraud to the jury.

But I do not concur in the view that the remedies and measure of damages provided by the statute for deficiencies *Page 474 in the guaranteed analysis or commercial value of fertilizers sold are exclusive of all others, or that the statute covers all possible cases of fraud in contracts for the sale of fertilizers, or all possible deficiences that may arise in the guaranteed analysis or guaranteed commercial value thereof. The only deficiency proved was a very slight shortage in the percentage of available ammonia below the guaranteed analysis, and for that the proper allowance was made in accordance with the provisions of the statute. There was substantial compliance with the contract, and substantial justice has been done, and, therefore, I think the judgment should be affirmed.

MR. JUSTICE GAGE. I am of opinion there is no evidence of fraud, and for that reason the judgment ought to be affirmed. I express no opinion on the other issue, because the expression of it would avail nothing.

The defendant pleaded failure of consideration; also fraud, and a counterclaim for damages. Paragraphs 3 and 4 of the answer, which will be reported, contain the allegations of fraud. There was testimony tending to sustain these allegations, but his Honor, the presiding Judge, ruled that fraud was not a defense to this action, and could not prevent a recovery upon the notes.

The note must be construed as if the provisions of chapter 34, article 1, of the Code of Laws of 1912, were embodied in them, as a part of the contract between the parties. Phosphate Co. v. Arthurs, 97 S.C. 358,81 S.E. 663. In that case it was held that, if fertilizers did not come up to weight and guaranteed analysis and were not actually delivered in kind according to contract, recitals in a note for the purchase price as to the weight, that such sack bore the guaranteed analysis, that it bore inspector's tag, and that the seller had neither impliedly nor expressly warranted *Page 475 the effects on the crops, and an agreement therein that the buyer could not hold the seller responsible for practical results, were attempts to dispense with the statutory requirements, and, therefore, void. That case did not rest upon fraud, but upon the ground that such recitals were against public policy — citing the case of McConnell v. Kitchens,20 S.C. 430, 47 Am. Rep. 845.

We also have cases directly in point arising under chapter 34, art. I, of the Code of Laws of 1912, announcing the principle that fraud will render a contract for fertilizers void, to wit: Germofert v. Castles, 97 S.C. 389,81 S.E. 665; Germofert v. Delleney, 97 S.C. 395, 81 S.E. 667;Germofert v. Scruggs, 97 S.C. 396, 81 S.E. 667. The same principle applies in other cases. Welborn v. Dixon,70 S.C. 108, 49 S.E. 232, 3 Ann. Cas. 407. Indeed, we cannot recall any case, certainly in this State, in which our Courts have held that a party perpetrating a fraud was not liable for the consequences of his wrongful act.

For these reasons I dissent.

MR. JUSTICE FRAMER concurs in the dissenting opinion of MR. CHIEF JUSTICE GARY.