Darby v. Waterboggan of Myrtle Beach, Inc.
| Decision Date | 18 February 1986 |
| Docket Number | No. 0695,0695 |
| Citation | 344 S.E.2d 153,288 S.C. 579 |
| Court | South Carolina Court of Appeals |
| Parties | William E. DARBY, d/b/a Resort Publications, Respondent, v. WATERBOGGAN OF MYRTLE BEACH, INC. and Waterboggan of North Myrtle Beach, Inc., Appellants. . Heard |
Dennis H. Smith, of Joseph, Harris & Hanna, Surfside Beach, for appellants.
J. Dwight Hudson, Conway, for respondent.
This is an action in contract on an account stated brought by William E. Darby, doing business as Resort Publications, against Waterboggan of Myrtle Beach, Inc., and Waterboggan of North Myrtle Beach, Inc., two corporations owned by Dwight L. Myers. 1 The complaint alleged that Waterboggan entered a written contract for advertising in Coast magazine, which Darby publishes. Darby alleged that he performed the contract but Waterboggan refused to pay the contract price. Waterboggan admitted the contract, but pleaded the defense of failure of consideration. Waterboggan also counterclaimed for fraud in the inducement. The circuit court, sitting with a jury, directed a verdict on Darby's contract action, but permitted Waterboggan's counterclaim for fraud to go to the jury. The jury returned a verdict in favor of Darby. The court then entered judgment against Waterboggan for the contract price plus interest and attorney's fees. Waterboggan appeals. We affirm.
The appeal presents two issues for our decision: (1) did the trial judge err when he directed a verdict on the contract action; and (2) did the trial judge err in failing to submit the question of mitigation of damages to the jury.
On appeal from a directed verdict, this Court must view the evidence and the inferences therefrom in the light most favorable to the appellant. Benya v. Gamble, 282 S.C. 624, 321 S.E.2d 57 (Ct.App.1984). Viewed in the light most favorable to Waterboggan, the evidence tends to establish the following facts.
Darby is the owner and publisher of Coast magazine, a tourist information guide distributed locally in the Myrtle Beach area and throughout the eastern United States and Canada. Waterboggan is a corporation owned by Dwight L. Myers which operates two waterslide amusements in the Myrtle Beach area.
On January 6, 1980, Waterboggan executed a one year written contract with Darby, calling for forty weekly insertions of a full page, four color advertisement featuring both Waterboggan amusements in Coast magazine at a charge of $280.00 per insertion. All forty insertions of the advertisement were printed in advance at the beginning of the contract period and were then tipped into the magazine each week when it was printed. For this reason, the contract for the advertisements provided it was "noncancellable" or entire.
On January 12, 1980, a companion contract was executed by the same parties. This contract called for Darby to publish 500,000 discount coupons offering Fifty Cents off the normal admission price for the Waterboggan amusements. The coupons were to be printed approximately every two weeks and distributed during the peak tourist season from April through August. Unlike the advertising contract, the coupon contract could be cancelled by giving the publisher written notice of cancellation. The contract price was $1500 payable $500 when the contract was signed, $500 when Waterboggan approved the proofs of the coupon, and $500 upon publication.
Waterboggan paid $200 down on the coupon contract in January 1980. After that it admittedly made no further payments on either contract.
Waterboggan had placed advertisements in Coast magazine in previous years. These were always full page, four color advertisements. In 1977 Waterboggan negotiated an "exclusive" contract with Darby which expressly provided that Waterboggan would be the only waterslide amusement advertised in Coast. For about a month Coast printed an advertisement for an amusement park which pictured a waterslide as one of the amusements. When Myers complained that the amusement park advertisement violated his "exclusive" contract, Darby, in order to retain Waterboggan's goodwill as a customer, agreed to give Waterboggan all its advertising under the contract at no charge. In succeeding years, however, Darby refused to enter into an "exclusive" contract with Waterboggan.
The 1980 contracts were negotiated by Myers and Bonnie Shine, a sales agent for Coast. According to Myers, he did not originally intend to advertise in the magazine in 1980 because of the expense involved. Shine, however, sold him on the coupon promotion which was new that year. Myers testified that Shine told him it was necessary to purchase a full page, four color advertisement to be eligible for the coupon promotion. 2 In order to take advantage of the coupon promotion, Myers agreed to the full page advertisement.
Both parties agree that during the negotiations Myers also asked for an "exclusive" contract with Coast. Shine told Myers that Coast no longer offered exclusive contracts to its customers. The written contracts executed by the parties were not exclusive contracts. Furthermore, each contained the following provision, printed in boldface type:
NO VERBAL AGREEMENTS OR COMMITMENTS ASIDE FROM THIS CONTRACT WILL BE BINDING.
Myers testified that he was familiar with the contents of the contracts and knew they were not exclusive.
While admitting these facts, Myers testified that during the negotiations Shine promised him Waterboggan's discount coupon would be the only discount coupon for a waterslide published by Coast that year. 3 Myers stated that without this assurance, he would not have signed either contract.
Darby began performing the contracts in March 1980. In July 1980, Myers discovered that Coast was running advertisements for other waterslides and was also printing and distributing discount coupons of one dollar or more for them in competition with Waterboggan. Some of the competitors' advertisements were two color (black and white) insertions of less than a full page. Upon making this discovery, Myers confronted Shine and told her he would not pay for the advertisements and coupons. Shine offered to let Waterboggan cancel the coupon contract if it wished, but Waterboggan declined to do so. Darby completed performance of the contracts and then sued Waterboggan for the contract price.
The trial judge directed a verdict on Darby's contract cause of action, but permitted Waterboggan's counterclaim for fraud to go to the jury. Waterboggan claims that if there was enough evidence to send the counterclaim to the jury, the contract cause of action should also have been decided by the jury, because fraud was raised as an affirmative defense to...
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Anthony v. Atl. Grp., Inc., Civil Action Nos. 8:09–cv–02383–JMC, 8:09–cv–02942–JMC.
...intended to deceive him; and (3) that he had a right to rely on the representation made to him.” Darby v. Waterboggan of Myrtle Beach, Inc., 288 S.C. 579, 584, 344 S.E.2d 153, 155 (Ct.App.1986); Moseley v. All Things Possible, Inc., 388 S.C. 31, 36, 694 S.E.2d 43, 45 (Ct.App.2010), reh'g de......
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...The evidence arguably supports a cause of action for fraudulent inducement to enter a contract. See Darby v. Waterboggan of Myrtle Beach, Inc., 288 S.C. 579, 344 S.E.2d 153 (Ct. App.1986). If Defender had brought such a cause of action, it could have been returned to the status quo ante; th......