Walker, Evans & Cogswell Co. v. Ayer

Decision Date12 May 1908
Citation61 S.E. 557,80 S.C. 292
PartiesWALKER, EVANS & COGSWELL CO. v. AYER.
CourtSouth Carolina Supreme Court

Pope C.J., dissenting.

Appeal from Common Pleas Circuit Court of Florence County; D. E Hydrick, Judge.

Action by the Walker, Evans & Cogswell Company against Hartwell M Ayer to recover the purchase price of certain machinery. From a judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.

Willcox & Willcox, for appellant.

Geo Galletly, J. W. Ragsdale, and S.W. G. Shipp, for respondent.

WOODS J.

On 23d September, 1903, Walker, Evans & Cogswell Company made a written contract with Hartwell M. Ayer to lease to him two Empire type-setting machines, with the provision that the machines should become the property of Ayer upon performance of his promise to pay for them the sum of $800. Two hundred dollars of the purchase money was paid in cash, and the remainder was to be paid in quarterly installments of $75, with interest at 8 per cent. per annum. On 31st January, 1905, this action was brought for $375 and interest alleged to be due on the credit portion of the purchase money. The answer thus states the defense relied on: "That at said times the defendant was running and operating a newspaper and printing office in the city of Florence, and the said delivery and contract was entered into by the said parties with reference to said business, and the said property was delivered and the said contract entered into by the said parties to secure the use of said property in setting and distributing type and facilitating and promoting the business of the said office. That all of said time the plaintiff represented that the said property was machinery and paraphernalia appertaining thereto, in good and sound condition, and suitable for the purpose of setting and distributing type and facilitating the same and the work and labor in the said office, and the defendant was induced to receive the said property and sign said contract upon the same. The defendant was induced to receive the said property and sign the said contract, not only on the aforesaid representations, but upon the special representations made to him by the said plaintiff to the effect: (1) That said machines would set clear proofs with little practice by the operators; (2) that there was no trouble in correcting the galleys; (3) that any person of ordinary intelligence could operate the same; (4) that each machine would do the work of five printers working by hand; (5) that the distributors were simple, and an ordinary boy could attend to them; (6) that they had been in successful operation for years; (7) That they would not break type; (8) that they would pay for themselves in a short time; (9) that they were particularly suitable and adapted to a small newspaper and printing office like that of defendant-and the defendant, confiding in the truth of said representations, was induced to receive said property and enter into said contract. The defendant alleges that all of said representations, both general and special, were and are wholly false and so known to the plaintiff at the time, and the same were made to mislead and overreach the defendant, and the said property was and is wholly unsuited for the purpose for which it was delivered to the defendant and wholly worthless. That the defendant, relying on the said representations and wholly induced by the same, paid to the plaintiff the first payment of $200 mentioned in the said agreement, and attempted to use said property in his office for the said purposes, and the defendant in good faith attempted to use said property and make the same come up to the said representations made by the plaintiff and perform the work it was represented to do from said date until about the 1st day of May, 1904, to defendant's great loss and expense, when defendant abandoned his effort in that regard and tendered the property to the plaintiff, and refused to make any further payments thereon, but the plaintiff refused to receive the same. That the said property has not since been used, or attempted to be used, by the defendant, but the same was and is subject to the order or demand of the plaintiff."

The defendant further set up a counterclaim on the same statements as are made in the answer with the additional allegation: "That the defendant was induced by plaintiff's said false and fraudulent misrepresentations, not only to pay to the plaintiff said $200, the first payment thereon, but was induced thereby to pay to plaintiff $50 on account of alleged charges for packing said property, and to further expend the sum of $35 freight charges on said property from the city of Charleston, from which point the said property was shipped by the plaintiff to the defendant, and to further expend the sum of $100 for work, labor, and material in putting up and putting together the said machines, the same having been by the plaintiff separated into parts to facilitate shipment of the same; that during the said period when the defendant was making in good faith efforts to use and operate said machinery in setting type and performing the work in his office which it was sold and falsely represented to do and perform defendant was put to the further necessary expense of hiring and paying extra hands and help, over and above the cost of performing the same work by hand, to the amount of $960, all of which said sums were induced and caused to be paid by the defendant by the said false and fraudulent representations and acts of the plaintiff to the damage of the defendant $1,345."

The plaintiff replied to the counterclaim, denying its material allegations. The plaintiff also demurred to all the defenses except the general denial "on the ground that they fail to state facts sufficient to constitute a defense, in that the alleged false and fraudulent representations, if true as alleged, amounted to nothing more than mere matters of opinion and commendatory expression as to value, prospects and the like, and fraud cannot be predicated thereupon."

The first exception assigns error in the order of the circuit court in overruling the demurrer. Some of the representations alleged in the answer taken separately may well be regarded as the mere puffing of his property by a seller which the purchaser is not justified in relying on. Still, after allowing for all this, there remains the allegation that the plaintiff represented as distinct facts that the machines would not break the type, that they were suitable and valuable for setting up type, that the defendants relied on these representations and was induced by them to enter into the contract, and that these representations were false and fraudulent, and the machinery turned out to be wholly worthless. There is no allegation of an express general warranty of the machines, but only of the particular representations above set forth. The rule in this state is that the seller, without any express warranty or representation of value, is held to warrant the article sold to be of value for the purpose to which it is ordinarily applied. The allegation here being that there was a complete failure of consideration of the contract by reason of the machines being absolutely worthless, the defendant, under the rule stated, on proof of his allegation, would be entitled to rescission of the contract. Martin v. Railway Co., 70 S.C. 8, 48 S.E. 616. This would be so even in the absence of allegations of express representations of quality and value. The case is of course stronger in view of the above-mentioned allegation of such representations. The demurrer was therefore properly overruled.

The plaintiff next contends the circuit judge should have granted his motion to direct a verdict on the ground "that the defendant had totally failed to establish the allegations in reference to false representations." The record certainly shows the defendant introduced evidence of the representations alleged in the answer, his own reliance on them, breaking of the type, and worthlessness of the machinery. The plaintiff, however, vigorously presses the point that the evidence showed the defendant had opportunity to examine the machines, that he did examine them while at work in plaintiff's publishing house, and that plaintiff did not give any express warranty. All this would not justify the direction of a verdict for the plaintiff, however, unless the parties dealt with equal means of information. In Bryce v. Parker, 11 S.C. 337, the court says "It is argued, however, that there was no warranty, nothing but a mere representation, and therefore the defendant's counterclaim could not be said to be a cause of action arising on a contract. In 1 Pars. on Cont. *580, it is said: "Any distinct assertion or affirmation of quality made by the owner during a negotiation for the sale of a chattel, which it may be supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or constituting a warranty."' Though in this state the rule is more favorable to the seller of real estate than to the seller of personal property, there being no implied warranty of title or quality in the sale of land, yet even in such sales it is said in Rupart v. Dunn, 1 Rich. Law, 101: "When the buyer without adequate means for forming his own judgment, relies upon the representations of the seller, then these representations must be fair and full." And in Ruberg v. Brown, 50 S.C. 401, 27 S.E. 874, which was also an action to set aside the sale of land, the court says: "Hence, to entitle one to relief for false representation, the representation must relate to some material fact, past or existing, concerning the subject of the contract, within the range of knowledge, as distinguished from matters of...

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