The opinion of the court was delivered by: Taylor, Justice.
This appeal arises out of an action brought by respondent in the Court of Common Pleas for Orangeburg County upon three promissory notes. The case was tried before the Honorable T.B. Greneker and a jury at the March Term and resulted in a verdict for plaintiff-respondent in the sum of $3,000.00. Defendants appealed to this Court from the trial Court's refusal to grant a new trial upon the following grounds:
"(1) That the Court erred in not charging the jury that a partial failure of consideration is a defense pro tanto to the suit brought on the three notes.
"(2) That the verdict of the jury is contrary to the greater weight of the evidence."
On Monday, May 18, 1953, appellant, J.C. Fickling, purchased from respondent at his place of business in Baltimore, Maryland, a lot of merchandise valued at $3,500.00, for which he gave a check in the sum of $500.00 which was to be cashed immediately and one for $3,000.00 which was not to be used provided the appellant, Fickling, and his wife, Beatrice W. Fickling, immediately upon Fickling's return to Orangeburg, executed and mailed to respondent their promissory notes in the amount of $1,000.00 each, payable in one, two, and three months. This was done and the $3,000.00 check was returned to J.C. Fickling. Appellants failed to meet these notes when due, and respondent brought suit.
Appellants contend first that the Court erred in not charging the jury that a partial failure of consideration is a defense pro tanto to the suit brought on the three notes and relies upon Section 8-845 of the 1952 Code of Laws for South Carolina, which reads as follows:
"Absence or failure of consideration is a matter of defense as against any person not a holder in due course and partial failure of consideration is a defense pro tanto whether the failure is an ascertained and liquidated amount or otherwise."
Appellants had set forth in their answer that the merchandise with the exception of the hardware was in boxes, and Fickling was not afforded an opportunity to inspect it but relied upon respondent's representation that it was salable; that the notes were mailed to respondent before the boxes were opened and the goods inspected in Orangeburg; further:
"(5) That immediately upon receipt of the goods at the store and at the very first opportunity, the defendant, J.C. Fickling, undertook to check his purchase by the list or invoice which had been furnished him as aforesaid and found that the merchandise was not as represented, in that, at least ninety (90%) per cent of it was torn, soiled, cut up, useless, unsalable and unfitted for the purpose for which it was bought; for example, there were shirts with only one sleeve, pants with one leg, coats and jackets cut, some with one and some with no sleeves, shoes that did not match, hose and socks that did not match, curtains and drapes that did not match.
"(6) That when the defendant, J.C. Fickling, was negotiating with Mr. Isadore Shocket, it was represented to him that the list of goods totaled two thousand nine hundred sixty-two dollars and forty-five cents ($2,962.45); that at the time he was furnished this list there was annexed to it what casually appeared to be an adding machine tape of the figures with a total of two thousand nine hundred sixty-two dollars and forty-five cents ($2,962.45); after these defendants had delivered the notes it was discovered that a correct tabulation of the said list gave a total of two thousand two hundred seventy-three dollars and ninety five cents ($2,273.95).
"(7) That immediately upon discovery of the condition of the merchandise and the error in the tabulation, the defendant, J.C. Fickling, telephoned Mr. Shocket from Orangeburg and told him about the condition of the goods, that they were not as represented and that only a few articles would be of use to him and thereupon Mr. Shocket told the defendant, J.C. Fickling, to go ahead with the goods and that he would come to Orangeburg and make the proper adjustments which he has never done.
"(9) These defendants further allege that the reasonable value of the merchandise that the plaintiff delivered to the defendant, J.C. Fickling, is not in excess of five hundred ($500.00) dollars and that the defendant has already paid to plaintiff this amount and that neither of the defendants are in anywise indebted to plaintiff."
The testimony is contradictory as to whether or not appellant actually inspected the merchandise or whether it was incased in boxes and cartons and was bought from an inventory list only. Appellant contends that he bought from a list and upon opening same in Orangeburg after the notes had been mailed, he found that it was not salable merchandise as represented but "90-95 per cent junk"; that he shortly thereafter telephoned respondent, advised him of the situation and that he stated: "What are you worried about? If the merchandise is not what you bought, you know Ike Shocket": that he promised to come to Orangeburg for the purpose of viewing the merchandise and making adjustments; that he realized only $482.00 from the sale of a portion of this merchandise; that the rest was of no value and was not salable in this section of the country; therefore, he had not bothered to return it to respondent but was expecting respondent to comply with his agreement to come to his place of business in Orangeburg for the purpose of making an adjustment. Respondent denied the foregoing almost in its entirety and stated that the merchandise was in good order, salable, and well worth over $3,500.00. The evidence further discloses that on June 17, 1953, two days before the first note was due, appellant, through his attorney, wrote respondent complaining that there was a ...