Bryce v. Parker

• Decision Date: 05 March 1879
• Docket Number: CASE No. 697.
• Parties: M. H. BRYCE v. W. F. PARKER.
• Court: South Carolina Supreme Court

11 S.C. 337

M. H. BRYCE

v.W. F. PARKER.

CASE No. 697.

Supreme Court of South Carolina.

Mar. 5th, 1879.

1. A tort arising out of contract may be waived, and the same cause of action treated as a contract, and set up as such, under the second subdivision of Section 173 of the code of procedure, by way of counter claim to an action arising on another contract.

2. Assurances made by the owner at the time of sale, that a chattel had not been subjected to certain conditions which rendered it peculiarly liable to disease, and without which assurances it would not have been bought, constitute a warranty.

3. Unascertained damages arising ex contractu are admissible as a counter claim.

Before MACKEY, J., at Oconee, March Term, 1878.

The trial was brought in a trial justice's court, and a verdict having been rendered for plaintiff, defendant appealed to the Circuit Court. By consent, it was then referred to a special referee, who reported in favor of plaintiff, and disallowed defendant'scounter claim, although reporting, as a conclusion of fact, that “defendant was damaged by the misrepresentations of the plaintiff in the sum of twenty-five dollars.” Both parties excepted. The presiding judge overruled all of the exceptions and gave judgment for the plaintiff. Defendant appealed, upon the ground that he was “entitled to set up his counter claim for damages sustained by reason of the breach of plaintiff's warranty,” and that it should have been allowed.

The facts are sufficiently stated in the opinion of the court.

Mr. S. P. Dendy and Mr. J. J. Norton, for appellant.

Keith & Verner, for respondents.

The opinion of the court was delivered by

MCIVER, A. J.

In this case the plaintiff brought his action upon an account, to which the defendant pleaded a counter claim, based upon the allegation that he had paid to plaintiff $25 for an ox, which the plaintiff warranted as fit for the purpose for which it was bought, which warranty was alleged to have been broken. For this breach of warranty the defendant claimed damages as a counter claim, and the only question raised here is whether the defendant could set up such a counter claim to the plaintiff's action. There is no pretence that the cause of action upon which the counter claim was based arose “out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim,” nor is there any pretence that it was connected with the subject of the action.

If, therefore, it is sustainable at all, it must be under the second subdivision of Section 173 of the code of procedure, as being a cause of action arising on contract. It seems that there was evidence tending to show that the defendant had bought the ox in the summer of 1873, from the plaintiff, upon his representation that the ox had not been brought from the mountains that season, and that but for such representation he would not have bought; whereas, in fact, as the referee found, the ox “had been brought from the mountains during the summer of 1873, and, by reason of having been so brought, it died of distemper in the early fall of that year, and was of no value to defendant,” and he therefore found “that the defendant was damaged by the misrepresentations of the plaintiff in regard to the above-mentioned ox in the sum of $25.” The counter claim was, however, disallowed-exactly upon what ground does not appear in the case as submitted; but from the argument we infer it was upon the ground that the defendant's claim for damages was not based upon a cause of action arising on a contract, but that defendant's only cause of action was for the deceit in making false representations in regard to the ox, which is a tort. It seems to us, however, that there is no just ground for saying that the defendant's claim for damages was not based upon a contract, or was not a cause of action arising on a contract. It may be that if the defendant had brought his action against the plaintiff in the nature of an action on the case for deceit, that he would have had a good cause of action for such deceit. But while deceit is a tort, it is one arising out of a contract, and a party may, as in this case, waive the tort and sue upon the contract. This was conceded in Schweizer v. Weiber, 6 Rich. 159, and, as is said in 1 Chitty on Plead. *139, “formerly case was the usual remedy for a false warranty or other misrepresentation on the sale of goods, but of late it is more usual to declare in assumpsit.” See also Stuart v. Williams, Doug. 19. It does seem that this was at one time doubted in this state, inasmuch as Nott, J., in Read v. Duncan, 2 McC. 167, declined to express any opinion upon the point. But, as Frost, J., says, in Wood v. Ashe, 3 Strob. 72,Brevard's Reports had not been published at the time the case of Read v. Duncan was decided, and therefore the case of Houston v. Gilbert, 3 Brev. 63, probably escaped attention. For in that case, which was an action of assumpsit to recover the price paid for a slave, on the ground that the plaintiff had been deceived by the representations made by the defendant while negotiating the contract of sale, it was held that it was settled law that in an action of assumpsit the plaintiff may recover on an express and also on an implied warranty where there has been fraud in the contract, and the proposition that to authorize a recovery on the ground of fraud or deception it would be...