Breedin v. S. & H. X-Ray Co.

• Decision Date: 01 June 1934
• Docket Number: 13861.
• Citation: 174 S.E. 913,173 S.C. 112
• Parties: BREEDIN v. S. & H. X-RAY CO.
• Court: South Carolina Supreme Court

174 S.E. 913

173 S.C. 112

BREEDIN v. S. & H. X-RAY CO.

No. 13861.

Supreme Court of South Carolina

June 1, 1934

Appeal from Common Pleas Circuit Court of Anderson County; C.J Ramage, Judge.

Action by C. S. Breedin against the S. & H. X-Ray Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for a new trial.

Hood & Hood, of Anderson, for appellant.

H. C Miller and A. H. Dagnall, both of Anderson, for respondent.

STABLER Justice.

The plaintiff in this case, who is a physician and surgeon resides at Anderson, S. C., where he operates a private hospital. The defendant company is a Georgia corporation, with its principal office in the city of Atlanta, and is engaged in the business of selling and distributing X-ray equipment. The complaint alleges: "That heretofore, to wit, the twenty-first day of November, 1929, plaintiff entered into an agreement with the defendant in the City of Anderson, South Carolina, wherein he agreed to purchase and the defendant agreed to sell to him accordingly to specifications certain X-ray equipment at the price of thirty-two hundred twenty-one and 25-100 dollars ($3,221.25) to be delivered to plaintiff in the City of Anderson, South Carolina, and there installed and demonstrated by defendant until the plaintiff acquired the necessary knowledge of its operation, the legal title thereto, however, to remain in the defendant until said X-ray equipment was fully paid for. That among other things it was specifically agreed that the defendant was to furnish to plaintiff as part of this equipment '1 Wappler Tilt Table, used, equipped with rail mounted tube stand, fluoroscopic horizontal attachment and Tube Holder, Fluoroscopic Screen 12X16, kettle type bowl, tube clamp, stereoscopic shift,' as well as a 'orthodiagraphic attachment to the vertical fluoroscope." D'

It was also alleged, among other things, that the installation of the equipment was completed in July, 1930, with the exception of the Wappler table and its appliances; that the company, finding it could not fill its contract in regard thereto, offered to furnish "in lieu thereof a new Keleket Table equipped in all respects as the Wappler Tilt Table," and that the plaintiff agreed to accept this proposition upon the condition that such table "embodied all the features, appliances and equipment incident to the Wappler Tilt Table"; that in violation of this agreement and understanding, "the defendant knowingly wilfully, wantonly and fraudulently furnished to plaintiff a second-hand Keleket Table which embodied none of the features, appliances or equipment of the Wappler Tilt Table," but which was equipped with a defective and an unusable horizontal fluoroscope; that the representations made to plaintiff by the defendant, that the Keleket table furnished was a new one and was equipped as a Wappler table, were false and were made by the defendant to induce the plaintiff to enter into the contract, and that he relied thereon; and that, although repeated complaints were made to the company, it refused to remedy the defects but fraudulently breached its contract, "and plaintiff therefore has elected to rescind said contract." A second cause of action was also stated to the effect that it was agreed between the parties that the company would furnish the plaintiff with a workable orthodiagraphic attachment to the vertical fluoroscope, but that it fraudulently breached the contract by furnishing and installing an inefficient and unusable one, and by refusing and failing to remedy the defects upon plaintiff's demand, "and plaintiff therefore has elected to rescind said contract." Judgment for both actual and punitive damages, in the sum of $2,900, was demanded.

The company, answering the complaint, denied all allegations of fraud on its part, and alleged that the plaintiff had defaulted in the payment of certain purchase money notes executed by him as evidence of his indebtedness to the defendant, and asked judgment, by way of counterclaim, for the possession of the property or its value, and for a dismissal of the complaint with costs. The plaintiff, in reply thereto, denied the right of the defendant to possession of the property.

We find in the agreed statement of facts that the action was begun "by the filing of a summons and complaint and the issuance of a warrant of attachment against certain property (apparently the same here in question) alleged to be the property of the defendant," and that the company thereafter "procured the discharge of the attachment under the provisions of section 543 and 544 of the 1932 Code."

The case was tried at the October, 1932, term of court of common pleas for Anderson county, Judge C.J. Ramage presiding. Before the pleadings were read, counsel for the defendant called to the Court's attention that the allegations of the complaint were appropriate to an action for rescission of the contract or to an action for breach of warranty or to an action for fraud, and moved that the plaintiff be required to elect upon which he would go to trial. Judge Ramage, however, reserved his decision and later refused the motion. He also overruled the defendant's motion for a directed verdict on the two causes of action alleged in the complaint and on the company's counterclaim, and submitted the case to the jury who found for the plaintiff $1,500 actual damages. The defendant then at the same term of the court, made a motion for a new trial, which was marked "heard" by the presiding judge, and which, by an order filed May 27, 1933, the court granted unless the plaintiff within twenty days from the date of such filing remitted on the record all of the verdict except $950. The plaintiff complied with the order on June 5th, and on June 9th his attorneys notified defendant's counsel by letter that such remittitur had been made. On June 17th the defendant served the plaintiff with written notice of intention to appeal from the order refusing the motion for a new trial and from judgment to be entered on the verdict. ...