Baltazzi v. McCormick

• Decision Date: 10 December 1929
• Docket Number: 12779.
• Citation: 150 S.E. 900,153 S.C. 371
• Parties: BALTAZZI v. McCORMICK et al.
• Court: South Carolina Supreme Court

150 S.E. 900

153 S.C. 371

BALTAZZI v. McCORMICK et al.

No. 12779.

Supreme Court of South Carolina

December 10, 1929

Appeal from Common Pleas Circuit Court of Aiken County; S.W. G Shipp, Judge.

Action by S. A. Warner Baltazzi against Mrs. Amy McCormick and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

Hendersons & Salley, of Aiken, for appellant.

Williams Croft & Busbee, of Aiken, for respondent.

WATTS C.J.

This action was commenced in the court of common pleas for Aiken county, S. C., by the due legal service of the summons and complaint with a warrant of attachment of defendant's horses, on or about the 12th day of March, A. D. 1927, to recover the sum of $3,500, the purchase price of a horse named Bacchus, sold by the plaintiff to the defendant on March 5, 1927. The attachment of defendant's horses was released by the defendant giving bond, and in due time the defendant answered the complaint setting up, among other things: That the defendant, being desirous of purchasing a high-class saddle horse, and learning that the plaintiff had a horse for sale, she approached the plaintiff for the purpose of purchasing such a horse if he had one suitable for her purposes. That she informed the plaintiff that she wanted a high-class saddle horse and one which was fit and suitable for riding and one that could jump hurdles and one of the hunter class of horses. That the plaintiff showed the defendant the horse Bacchus, and represented to her that the horse was a high-class horse with a fine pedigree, that he was brought over from France, and that he was fit and suitable for the purposes of riding and jumping hurdles and a splendid hunter, and guaranteed and represented that the horse was in good, sound health and body and free from all defects, and that he would be quite suitable for said purposes, and offered to sell the horse for $3,500, and that, relying upon said representations, she agreed to purchase the said horse, and thereupon gave the plaintiff her check for $3,500 to cover the purchase price thereof.

The defendant further alleged that, soon after getting possession of the said horse Bacchus, she discovered that he was lame in his right hind leg, and that he had an injury or defect in his stifle joint in his said right hind leg which made him lame, and that she also found that he had a jack or spavin knot on his said right hind leg, and that he was otherwise diseased in said right hind leg, which made him lame and utterly unfit and unsuitable for the purposes for which he was purchased, and in her opinion and as she was informed the said troubles were chronic and incurable, and on account thereof the said horse was utterly worthless, unfit, and unsuitable for the saddle and jumping purposes for which he was bought, all of which was known to the plaintiff at the time he sold the horse to the defendant and at the time he made said representations as to his quality and soundness and on account thereof there has been an absolute and entire failure of consideration for the said check.

Defendant further alleges that, immediately upon discovering the defective condition of the horse, she rescinded the said contract of purchase, returned the said horse to the plaintiff, and demanded a return of her check, but the plaintiff refused to accept said horse and refused to return her check, and thereupon she notified the plaintiff that she would hold the said horse at his own risk and expense, and the defendant demanded that the said contract of sale be rescinded and that she be paid the reasonable costs and expenses of taking care of the horse, since she returned or offered to return him to the plaintiff.

The case came on for trial at Aiken before Hon. S.W. G. Shipp, presiding judge, and a jury, on March 30, 1928, and resulted in a verdict in favor of the plaintiff against the defendant on the 31st day of March, 1928, for the sum of $3,500. The defendant made a motion for a new trial upon the minutes of the court, which was refused by the presiding judge, and judgment was thereafter duly entered up in the office of the clerk of court for Aiken county in favor of the plaintiff against the defendant for the amount of the verdict and costs.

Within due time the defendant served her notice of appeal from the rulings and charge of the presiding judge and the verdict of the jury and the judgment entered thereon, to the Supreme Court of this state, and now asks the Supreme Court to reverse the said judgment upon the following case and exceptions:

The exceptions, six in number, are:

(1) The presiding judge erred in holding and in charging the jury that the defendant could not rely on an implied warranty of soundess and suitability of the horse Bacchus in this case, and in refusing to charge defendant's second request relating to implied warranty of soundness and adaptability and that a sound price warrants a sound commodity, and that it is fit and suitable for the purposes for which the seller knew it was intended, for the reason that, under the state of the pleadings and evidence in this case and the contention of the plaintiff that there was no warranty or guaranty of the horse and the contention of the defendant that there was an express warranty and guaranty of the horse, there was an issue of fact to be determined by the jury as to which contention was correct; and, if the jury found that there was no express warranty of the horse, then the defendant had the right, under the circumstances, to have the jury charged the law of implied warranty applicable to such state of facts, and it was error for his honor to hold otherwise.

(2) The presiding judge erred in charging the jury that "if Mr. Baltazzi made an express warranty of the horse, and there was a breach of the warranty, then she (the defendant) had a right to rescind the contract, and it would be her duty to return to him in the same condition as she received it," and in stressing upon the jury that, in order to rescind a contract of purchase of an article, the purchaser must return the article to the seller in the same condition it was in when he received it; the error being that it is not necessary to return the article in the same condition, under the law, as when it was received, but only substantially the same condition; and, where it is necessary to test the article or thing purchased, to determine whether it is sound or comes up to the warranty, and such test or investigation brings about a change in the condition of the article or property, or where the change in the property is the result of the defects of which the purchaser complains, it is not necessary for the purchaser to return the property in the same condition as when purchased in order to be able to rescind the contract. In view of the testimony that the horse went very lame on Saturday after the drag hunt on the next day after the sale, and plaintiff contended strongly that the horse was hurt in that hunt, and could not be returned in the same condition as when received, and defendant's testimony tended to show that the hunt on Saturday only brought out the latent defects in the horse, under this charge the jury was practically instructed that the defendant could not rescind the contract under which the horse was purchased, all of which was very harmful and prejudicial to the rights of the defendant, as it practically destroyed her right to rescind the contract of sale in this case.

(3) The presiding judge erred in charging plaintiff's fifth request to charge to the effect that, before a person can rescind a contract of sale he must return the property in the same condition as when he received it, "for no person has a right after a trade is made, to damage the property or permit the same to be damaged, whether by accident or design and to throw it back upon the hands of the seller; and under such circumstances the seller has the right to refuse to accept the return of the property"; the error being that said request was a charge on the facts, and, under the testimony in this case, as it appeared that the horse went badly lame on Saturday after he was ridden in the hunt the day after the sale, and the defendant had a reasonable time under the law to discover latent defects in the horse, and to test him therefor, and it further appearing that the horse had been blistered for an old trouble in his stifle joint and that the lameness was the result of the defect which the ride on Saturday brought out where it could be seen, under this charge the jury could have rendered no other verdict than a verdict for plaintiff, because they were instructed that the defendant could not rescind if the property had been damaged and could not be returned in the same condition as when received, which we submit was not a sound proposition of law. The modification in the charge of this request emphasized the error. It is respectfully submitted that the purchaser has a reasonable time...