Collins-Plass Thayer Co. v. Hewlett

• Decision Date: 11 February 1918
• Docket Number: 9905.
• Citation: 95 S.E. 510,109 S.C. 245
• Parties: COLLINS-PLASS THAYER CO. v. HEWLETT.
• Court: South Carolina Supreme Court

95 S.E. 510

109 S.C. 245

COLLINS-PLASS THAYER CO. v. HEWLETT.

No. 9905.

Supreme Court of South Carolina

February 11, 1918

Appeal from Common Pleas Circuit Court of Barnwell County; R. W Memminger, Judge.

Action by the Collins-Plass Thayer Company against John H. Hewlett. Judgment for plaintiff, and defendant appeals. Affirmed.

The charge referred to in the opinion was as follows:

Mr Foreman and gentlemen of the jury: This controversy is before you for determination. You will have in the jury room what is known as the complaint, which sets out the claims of the plaintiff. You will have also the answer. You will find on the back of that complaint that a verdict has been written before in favor of the plaintiff for a certain amount of money. It appears that the case came up and there was no answer put in on behalf of Mr. Hewlett and they appeared before the judge and got a verdict, and, on the matter being called to the attention of the court, the court set that verdict aside, and said that the case should be tried before a jury. The answer sets out the contentions of Hewlett, and you will have that before you.

The questions in this case are plain and simple. You will find in this first cause of action in the complaint that they claim that they entered into a certain contract with Mr. Hewlett for the future delivery of certain bags at the price, etc., set out in that contract, and that they shipped to him one shipment under that contract, and for that he paid; that they shipped him a second shipment, under that contract, and that he did not receive or pay for; that he would not take it, and did not pay for it, and they claim that they lost thereby $225.26 for the bags so shipped. They claim that they shipped those bags to him, and he would not pay for those, and that therefore he owes them for those $225.26, the price thereof.

Now, in the second cause of action, it is claimed that not only would not Mr. Hewlett pay for those bags, which they claim that they shipped to him, but that he refused to order out any more bags under the contract that they held for the rest of the bags specified and set out in the contract subject to his orders, but that he neglected or declined or refused to order them out, and, while they were holding them subject to his order, that the price of bags declined, and that therefore they lost the difference in the price which they had contracted to sell them to Mr. Hewlett for and the price which they could get for them on the market, and that they would have shipped them to Mr. Hewlett had he ordered them out, and that that amounts to $1,500.

Mr. Hewlett claims on the other hand, and you will find it set out in the answer, that they made him one shipment under his contract, which he sold to Mr. All, and that he took that shipment out, and, although he found them not to be the dimensions he had agreed upon, still he paid for them, and there is no contest that he paid for that shipment. He says the terms of the contract were, as you will find set out in the contract, that the goods were to be shipped when ordered, with sight draft attached to the bill of lading. Mr. Hewlett claims to the second shipment that they did not comply with that, in that they varied from the terms of the contract, and would not let him get the second shipment until he paid for the first. He claims that they had no right to make any conditions as to the payment of a previous shipment before any subsequent shipment that he afterwards ordered would be shipped. He claims that they broke their contract in that way, and, the goods not having been received by him, that he had to abandon the contract and get out and supply himself on the market with other bags to use in his business, and that, the contract having been broken, they are not entitled to recover anything whatsoever upon it.

You will, therefore, decide either in favor of the plaintiff or for the defendant. If you find that the plaintiff has not made out its case by the greater weight of the evidence, you will find for the defendant. If you find that the plaintiff has made out his case by the greater weight of the evidence, you will find for the plaintiff. Just say, "We find for the plaintiff" so much money, or "We find for the defendant," and sign your name as foreman. That is the whole thing. It is for you to decide. Write the verdict on the back of the paper marked "Summons and Complaint." Write your verdict out in words and not figures, if you find for the plaintiff, or, "We find for the defendant," if you find for the defendant, and sign your name as foreman, Mr. Foreman.

You may retire.

James M. Patterson, of Allendale, for appellant.

V. Seymour Owens and James A. Willis, both of Barnwell, for respondent.

GAGE J.

Action and recovery for breach of contract. The testimony tends to show these circumstances: The plaintiff resides in New York and the defendant resides at Allendale in this state. They made in the fall of 1913 a contract in writing, whereby the defendant agreed to make orders of the plaintiff for 38,000 bags in which to pack fertilizers at Allendale, and whereby the plaintiff agreed to ship to the defendant the bags as they might be ordered. The preliminary contract to sell and to pay was made through a Charleston broker for the plaintiff. Thereafter the transaction was evidenced by a letter written by the plaintiff to the defendant, which, omitting irrelevant parts, reads thus:

"We have received your order * * * for thirty-eight thousand bags * * * delivered at Allendale, S. C., terms cash sight draft attached to bill of lading * * * fall or spring delivery."

This writing was accepted by the defendant, and evidences the contract. Pursuant thereto the defendant on 2d of February ordered 3,000 bags, which were shipped on February 16th to him from New York. The testimony tends to show that payment for these bags was not made pursuant to the letter of the contract, but that the defendant got possession of the bags February 26th, and was belated in paying the draft drawn against them until some 12 days thereafter, about March 10th, the testimony does not fix the exact day. This delay in payment gave rise to the first occasion of discord between the parties. On February 19th the defendant ordered out 2,000 bags more, and wired the plaintiff on February 27th to know when they might be expected. To that wire the plaintiff answered by wire on March 2d in these words:

" Will make no further shipment until draft is paid. See letter"

--referring to the draft drawn against the 3,000 bags, and above alluded to. The letter, to which the telegram pointed the defendant, was written also March 2d, and it reads thus:

"Confirming our wire, your contract with us called for prompt payment of draft for bags as shipped. This you have refused to do, and we herewith notify you that we will not fill any farther orders until that draft is paid. Further your contract standing does not warrant further shipments."

Nevertheless, the plaintiff did ship out to the defendant the 2,000 bags, consigned to the plaintiff's order, with direction to notify the defendant. But the plaintiff had advice of the payment of the first draft before, and shipment was made. And on the same day the 2,000 bags were shipped out (March 10th) the plaintiff wrote to the defendant a letter, the relevant parts of which read thus: "You made a contract with us for fertilizer bags, 38,000 of them, and have furnished us with orders for 3,000 only. We shipped those out on the 16th of February, as per your directions, made draft to the Citizens' Bank of Allendale, and that draft has not yet been paid. We request that you take up that draft, and we herewith notify you that we stand ready to fill the balance of your order and are waiting directions for same, and we request that you forward them."

No reference was made in the letter to the concurrent...