Walker, Evans & Cogswell Co. v. Ayer
Decision Date | 12 May 1908 |
Citation | 61 S.E. 557,80 S.C. 292 |
Parties | WALKER, EVANS & COGSWELL CO. v. AYER. |
Court | South Carolina Supreme Court |
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.
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:
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 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: ...
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