Morrison v. Smith

134 S.E. 365, 136 S.C. 357, 1926 S.C. LEXIS 147

• Court: Supreme Court of South Carolina
• Decided: August 11, 1926
• Docket: 12049
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Beease.

This is an action in claim and delivery of certain per sonal property sold and delivered by the plaintiff to the defendant, upon which the plaintiff holds a chattel mortgage securing the purchase price.

The property purchased by the defendant consisted of machinery intended to be used in his abattoir near Columbia, a rendering and drying tank, a 20-horse power motor, and appurtenances, all set forth in the contract of sale.

, The purchase price was $3,370, $1,100 of which was paid in cash and the remainder, $2,270, was secured by sixteen notes, dated September 25, 1922. Fifteen of the notes were for $140.00 each, payable in consecutive months beginning November 25, 1922, and the sixteenth was for $170.00, payable February 25, 1924.

The plaintiff claimed that the notes due as follows had not been paid:

October 25, 1923 ............................$140.00

November 25, 1923 .......................... 140.00

December 25, 1923 ........................... 140.00

January 25, 1924 ........................... 140.00

February 25, 1924 .................................................... 170.00

$730.00

The defendant admitted the execution and nonpayment of the notes, and set up a counterclaim of $500.00 damages, resulting from the failure of the plaintiff to comply with a later contract entered into between the parties.

After the sale in September, 1922, the plaintiff sent his representative to Columbia to install the machinery. After it had been installed, it developed that the 40-cycle motor which had been sent was insufficient; that it should have been a 60-cycle motor.

The defendant testified that the agent of the plaintiff dismantled the motor, “cased it up, and sent it back himself. He would not let me have anything to do with it,” although he testified also that the motor remained there until February 1, 1923, when he carried it to the depot 'and shipped it back to the plaintiff upon an open bill of lading, without having received any instructions from the plaintiff to do so. The evidence for the plaintiff tends to show that, when the motor arrived in Detroit, he was notified by the carrier and declined to have anything to do with it, allowing it to remain with the carrier. In the meantime the defendant supplied himself with another motor at a cost of $450.00.

On May 1, 1923, the parties entered into an agreement for the purpose of adjusting the controversy between them in reference to the insufficient motor which had been furnished. Let this agreement be reported.

At the time the notes maturing on the 25th of December, 1922, January, 1923, February, 1923, March, 1923, and April, 1923, $140.00 each, $700-00, with interest, $25.20, were past due. After charging the defendant with $66.20, expenses of the plaintiff’s agent, and crediting him with $250.00 (as hereinafter explained) there was due to the plaintiff $541.40 — -thus:

The five notes ..............................$700.00

Interest .................................... 25.20

Expenses................................... 66.20

$791.40

Credit ..................................... 250.00

$541.40

The agreement provided that the defendant should pay this amount, upon the draft of the plaintiff. It appears that he did so, and also paid the notes maturing May, June, July, August, and September, 1923, leaving unpaid the five notes in suit.

The agreement also contained the following provision:

“That Morrison (the plaintiff) shall allow Smith (the defendant), on account of said mistake in respect to the motor, the sum of two hundred and fifty dollars ($250.00) ; and Morris shall release all claim upon the motor at Dayton and order the same returned to Smith, and said motor shall be Smith’s property.”

The case was tried before his Honor, Judge Whaley, of the County Court of Richland County, and a verdict was rendered in favor of the plaintiff, both upon his claim and upon the defendant’s counterclaim. The defendant has appealed.

The argutnent of the defendant’s counsel is limited to two propositions:

(1) That the Court erred in allowing plaintiff’s attorney to ask the plaintiff if he knew where the motor was at the time he signed the agreement with Smith to return the motor to Smith. We find no exception raising this question.

(2) That there was error in refusing to direct a verdict in favor of the defendant upon his counterclaim, upon the ground “that it is undisputed that Morrison did not comply with his contract in shipping the motor or ordering it shipped back to Smith.’ The evidence was conflicting upon the question whether the motor ever reached the possession of the plaintiff; the trial Judge properly left it to' the jury to decide the .question, and properly ruled that, if it had not reached his possession, but was in the possession of the carrier, he having refused to accept delivery, the plaintiff complied with his contract in ordering the carrier to ship it back to Smith.

The judgment of this Court is that the judgment of the County Court be affirmed.

Messrs. Justices Watts, Cothran and Stabeer, and Mr. Acting Associate Justice C. J. Ramage concur. Mr. Chiee Justice Gary did not participate.