Anderson v. Merchants Grocery Co.

84 S.E. 109, 99 S.C. 383, 1914 S.C. LEXIS 128

• Court: Supreme Court of South Carolina
• Decided: July 4, 1914
• Docket: 8765
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gage.

■ The plaintiff sued on a written contract for goods delivered thereunder.

The sum claimed was $151.20; the Jury found $62.50; the plaintiff appeals.

There are ten exceptions, but not nearly so riiany issues. The appellant has grouped them into six, but there are really only three issues in the case.

The testimony shows this: that the defendant signed a written order for fourteen kegs of a 'Soft drink called Mezzo; and that the Mezzo was delivered; and that all of the kegs were sold by defendant to its customers; and that one customer returned to the defendant four kegs which he had bought of defendant; that some of these customers did not pay defendant for the Mezzo.

The answer plead two defenses: (1) fraud, and (2) breach of a parol warranty. These in an inverse order.

1 The Court plainly, more than once, excluded the second defense, because there was no warranty expressed in the paper order, such as defendant plead. The whole charge made it plain to the jury that, so far as a warranty was concerned, the parties were held down to that expressed in the paper contract, and none other. The jury was instructed: “If the defendant undertook to prove that he undertook to guarantee something else except what was in writing that would be incompetent and you should not consider such testimony. So, the testimony on the guarantee must have reference to what he did guarantee in writing and just what I have read; and all other testimony that you have heard that came out before I could rule on it, you must disregard as far as the guarantee is concerned.” It was needless, therefore, to charge plaintiff’s third request; and that is the basis of the ninth exception.

2 It is true, the answer did not plead a breach of those warranties which were expressed in the paper, nor was theré any testimony thereabout; and the Court might well have refrained from a statement of those warranties. But any such statement could not have misled the jury, in view of the plain instructions above quoted.

Thus, exceptions six, seven and ten are without merit.

3 Nor is the eighth exception well taken, because it was a favorable statement, for the plaintiff, of the defendant’s liability.

The other exceptions related to the first defense—that of fraud.

And following the argument, thejr may be considered together.

4 First, as to the pleadings. The answer alleges in effect: that the vendor, when the contract was made, told the ven dee that the beverage was one thing when the vendor knew it was another; that the vendee relied on the vendor’s words; that the vendor had the intent to deceive; that the vendee declined to accept the beverage, and so notified the vendor.

By good sense, and by authority, that is a sufficient plea to prove fraud.

In every case of fraud the essence of the transaction is the intent of actor. It is not sufficient, as an indictment, to simply charge the existence of the intent; the pleader must go further, and allege a false statement, with knowledge of its falsity, the reliance upon it by the other party, to his hurt. 2 Pom. Eq., sec. 882; Gem. Chem. Co. v. Youngblood, 58 S. C. 56, 36 S. E. 437.

The answer here meets the measure of the law; that in Bromonia Co. v. Drug Co., 78 S. C. 482, 59 S. E. 363, relied on by appellant, did not do so by very much.

The testimony was responsive to the plea and sustained it.

But the appellant further contends, that to make available the plea of fraud, the respondent must have tendered back to the vendor the worthless goods.

The answer alleges such tender; the Court charged the jury that a tender must be made; the testimony shows that the tender was made.

5, 6 The answer alleges “that soon- after the arrival of said goods defendant ascertained the character of the same, and thereupon immediately declined to accept the same, and has not accepted the, same, and duly notified plaintiff thereof.”

The Court charged, “if there had been no misrepresentation about them, the defendant has the right to have a reasonable time in which to ascertain that fact, but it was his duty to do so in a reasonable time, and if he found out that there had been misrepresentation, or that the goods did not come up to the guarantee, it was his duty, after he ascertained that fact, either as to fraud or misrepresentation, to notify the plaintiff, and either return the goods or to offer to return them.”

7 Twenty days after the beverage was received, the vendee wrote the vendor: “These goods are here subject to your order.”

That letter was objected to; the Court excluded the irrelevant parts and admitted the part above quoted, which is clearly competent.

There is no ground to reverse the judgment below, and it is affirmed.