Kirkpatrick v. Hardeman

110 S.E. 119, 118 S.C. 146, 1921 S.C. LEXIS 216

• Court: Supreme Court of South Carolina
• Decided: December 19, 1921
• Docket: 10798
• Status: Published

Opinion

■ The opinion of the Court was delivered by

Mr. Chiee Justice Gary.

The first question that will be considered is whether the agreement was within the statute of frauds. Section 3738 of the Code of Daws of 1912 is as follows:

“No contract for the sale of any goods, wares and merchandise for the price of fifty dollars or upwards shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”

It was not necessary for the plaintiff to prove that there was a compliance with the foregoing requirements on his part, but that there was a memorandum in writing signed by the defendant, or by his agent thereunto lawfully authorized. The case of Louisville Co. v. Lorick & Lowrance, 29 S. C., 533; 8 S. E., 8; 2 L. R. A., 212, shows that there was a sufficient compliance on the part of the defendant and his duly authorized agent tó take the case out of the requirements of the statute of fraud. Therefore the defendant’s motion to sustain the order of nonsuit must be overruled.

We proceed to the consideration of the appellant’s exception as to the alleged failure of tender. The record contains a copy of the following letter:.

“Greenville, S. C„ Oct. 30, 1919.

“Mr. Isaac Hardeman, Charlotte, N. C.—Dear Sir: Referring to our telephone conversation this morning, I beg to state that my customer, Mr. J. W. Kirkpatrick, of this city,. demands delivery of one hundred shares Watts Mills second preferred stock sold him at $98.00 per share, plus commission; hence we must demand of you delivery of this stock in due course of time. * * * Unless you make such adj ustment, we hereby give you notice that we demand delivery of the stock.

“Yours truly,

“Goldsmith & Stone,

“By W. B. Stone.”

The record does not show that the defendant replied to this letter. His unexplained silence tended to show a refusal to comply with the request, and to render a tender on the part of the plaintiff unnecessary. Clinton v. Carpenter, 113 S. C., 10; 101 S. E., 47.

The testimony in regard to waiver of tender by the defendant was susceptible of more' than one inference, and should have been submitted to the jury. This exception is sustained.

Reversed.

Mr. Justice Cothran did not sit.