Fielder & Brown v. Jennings

*29 The opinion of the Court was delivered by Mr. Justice Watts. “This was an action filed by Fielder & Brown, a partnership, on the 15th day of July, 1921, against John J. Jennings, non compos mentis, and T. M. Bishop, committee for John J. Jennings. The complaint was in usual form for a suit for debt for the sale of certain goods purchased from plain-' tiff October and November, 1920, and the answer of the defendant T. M. Bishop, committee, alleged the insanity of John J. Jennings at the time the contract was entered into and the adjudication thereof by the Probate Court of Spartanburg County.' F. G. Harris, Esq., was duly appointed and accepted as guardian ad litem for John J. Jennings, The case was docketed on Calendar I and called for trial on the 3d day of October, 1923, before Hon. T. J. Mauldin before a jury upon the sole issue of the mental capacity of John J. Jennings at the time the contract was entered into. The pleadings were verified.”. The exceptions complain of error on the part of his Honor in not directing a verdict in favor of the defendant as asked for, in not granting motion for a new trial, and in not permitting witnesses Pearson and Hendricks, to answer certain questions asked them. The only question in the case was the mental capacity of John J. Jennings when he purchased the goods from Fielder & Brown. This was properly submitted to the jury for their determination, as there was evidence pro and con as to that issue. As was said by Mr. Justice Hydrick in Cathcart v. Matthews et al., 105 S. C., 329; 89 S. E., 1021: “Neither Cathcart’s confinement in the asylum nor the several adjudications of his lunacy is conclusive of the fact of incapacity.” Jennings purchased the goods; Brown testifies that he saw nothing wrong with him. *30 The defendants allege insanity and mental incapacity to avoid the debt. The burden of proving insanity rests on him who alleges it and seeks to avoid an act on account of it, and it devolves on him to establish the fact of insanity by a preponderance of the evidence. The fact that he had been at one time adjudged a lunatic and committed to the asylum is not conclusive of his mental incapacity, but the question is: What was his mental condition at the time he purchased the goods from the respondent ? 14 R. C. L. pp. 621 and 622. Langley v. Cease, 122 S. C., 206; 115 S. E., 230, and authorities therein cited. Ballard v. McKenna, 4 Rich. Eq., 358. Exceptions 1, 2, and 3 are overruled. Exception 4 is overruled under 14 R. C. L., 618, and in addition to that there was ample testimony as to whether the defendant had capacity or was incapacitated, without the testimony of the witnesses as to his general reputation; and, in any view, it was not harmful or prejudicial. All exceptions are overruled, and judgment affirmed. Messrs. Justices Fraser and Marion concur. Mr. Chief Justice Gary and Mr. Justice Cothran did not participate.