Black v. B.B. Kirkland Seed Co.

• Decision Date: 01 October 1930
• Docket Number: 12981.
• Citation: 155 S.E. 268,158 S.C. 112
• Parties: BLACK v. B. B. KIRKLAND SEED CO.
• Court: South Carolina Supreme Court

155 S.E. 268

158 S.C. 112

BLACK v. B. B. KIRKLAND SEED CO.

No. 12981.

Supreme Court of South Carolina

October 1, 1930

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, County Judge.

Action by E. W. Black against B. B. Kirkland Seed Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Melton & Belser, of Columbia, for appellant.

D. W Robinson, of Columbia, for respondent.

BLEASE J.

Action by the respondent against the appellant for the recovery of damages, alleged to have been sustained in connection with the purchase of rye for planting purposes.

Paragraphs 3, 4 and 5 of the complaint are as follows:

"3. That on or about November 1, 1928, and again on or about November 17, 1928, the plaintiff applied to the defendant for the purchase from defendant of genuine abruzzi rye to be sown by him; and at said times the defendant sold and delivered to the plaintiff what it represented as genuine abruzzi rye, the plaintiff paying for the same as genuine abruzzi rye the price asked by defendant therefor purchasing ten bushels at each time.

"4. That the plaintiff had prepared his land for the purpose of sowing it in such rye, to grow and market the same, and after purchasing the said rye from defendant, sowed it on his land, properly prepared, which land was situated on and along a public and much used highway.

"5. That in truth and in fact the said representations of the defendant in reference to said rye were not true; said rye so sold and so sown by the plaintiff was not abruzzi rye; said rye was in truth and in fact worthless and worse than worthless in that it produced practically no rye, and while it was growing it was apparent to the public traveling on and along this highway that it would not produce any rye."

The appellant pleaded a general denial, and alleged the rye was sold under a nonwarranty clause and custom in which it was not to be responsible for the crop produced.

The trial resulted in a verdict for respondent in the sum of $350.

We do not deem it necessary to discuss in detail the appellant's exceptions.

When the case was called for trial, the appellant, pursuant to notice, moved that the respondent be required to elect whether he was suing in contract for breach of warranty, or in tort for deceit and misrepresentation. Pursuant to request by the court, respondent's attorney stated that his cause of action was "for a breach of contract, warranty." Then appellant's attorney made a motion that the respondent also be required to elect whether he was suing for breach of an express warranty or for breach of an implied warranty of soundness. This motion was not granted, the court stating that the election already made was "sufficient under the notice you have got as far as that is concerned." This ruling and the charge to the jury and refusal to direct a verdict for the appellant are the subjects of exceptions to this court.

Under the view we take of the case, a brief statement of the law applicable is sufficient.

Where the plaintiff jumbles two or more separate and distinct causes of action in one complaint, a motion to require him to elect upon which cause of action he will proceed to trial is proper. Jumper v. Lumber Co., 119 S.C. 171, 111 S.E. 881; Hodges v. Bank of Columbia, 130 S.C. 115, 125 S.E. 417. Such motion made before reading of the pleading is in time. Hodges v. Bank, supra; Ruff v. Railroad Co., 42 S.C. 114, 20 S.E. 27.

One cannot rely upon an implied warranty where one pleads an express warranty. Baltazzi v. McCormick, 153 S.C. 371, 150 S.E. 900; Rainey v. Simon, 139 S.C. 337, 138 S.E. 41. But for the express warranty to preclude an implied warranty, both must relate to the same or a closely allied subject. Wells v. Spears, 1 McCord, 423; Mull v. Touchberry, 112 S.C. 422, 100 S.E. 152; Rainey v. Simon, supra.

It was alleged that respondent applied to appellant for, and the latter sold and delivered to him what it represented to be "genuine abruzzi rye," for which he paid...