Gary v. Jordan, No. 17625

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLEGGE; STUKES
Citation113 S.E.2d 730,236 S.C. 144
PartiesS. M. GARY, Respondent, v. C. B. JORDAN, Appellant.
Docket NumberNo. 17625
Decision Date14 March 1960

Page 730

113 S.E.2d 730
236 S.C. 144
S. M. GARY, Respondent,
v.
C. B. JORDAN, Appellant.
No. 17625.
Supreme Court of South Carolina.
March 14, 1960.

Page 731

[236 S.C. 146] C. T. Graydon, Augustus T. Graydon, Columbia, for appellant.

Thomas H. Pope, Robert D. Schumpert, R. D. Parler, Newberry, Frank L. Taylor, Columbia, for respondent.

[236 S.C. 147] LEGGE, Justice.

Plaintiff, a resident of Newberry County, owned and maintained there an accredited herd of dairy cattle. In July, 1956, he purchased from the defendant, a cattle trader residing in Richland County, twenty Holstein cows and heifers, which were to have been added to plaintiff's herd. Upon test of their blood taken on August 31, 1956, it was discovered that six of the animals so purchased were positive reactors to brucellosis, more commonly known as Bang's disease. Thereafter, outbreaks of the disease in plaintiff's herd necessitated the slaughter of some thirty cows and quarantine of the remainder. This action for fraudn and deceit resulted, based upon alleged misrepresentations made by the defendant to the plaintiff in regard to the twenty animals before mentioned.

Defendant, admitting the sale, alleged that just prior to it the cattle had been tested by the State Veterinary Laboratory and found to be free of Bang's disease; and he alleged by way of counterclaim that the plaintiff owed him seven hundred dollars in connection with his replacement of six of plaintiff's cows that had been slaughtered.

Upon the trial at the February, 1959, term of the Court of Common Pleas for Richland County, the presiding judge [236 S.C. 148] overruled defendant's motions for nonsuit and direction of the verdict, and submitted the case to the jury, which found for the plaintiff six thousand eight hundred ($6,800) dollars actual damages. Thereafter, defendant's motions for judgment n. o. v. and for new trial having been overruled, this appeal followed.

Having agreed that the verdict was amply sustained, as to amount, by the uncontradicted evidence of damage counsel have

Page 732

very properly omitted such testimony from the transcript of record.

Appellant's numerous exceptions raise six questions:

1. Was there sufficient evidence of fraud and deceit to carry that issue to the jury?

2. Should the plaintiff have been held barred from recovery by reason of his acts subsequent to the alleged fraud?

3. Did the trial judge err in allowing an amendment of the complaint at the conclusion of plaintiff's case?

4. Was there error in the admission of certain testimony?

5. Did the trial judge err in permitting cross-examination of the defendant concerning an injunction proceeding instituted in January, 1957?

6. Did the trial judge err in refusing to charge certain requests submitted by the defendant?

The plaintiff testified that he had started his herd in 1938; that thereafter its growth had resulted from artificial breeding under the Clemson College program; that, except for ten cows that he bought in 1954 from a Mr. Powers, he had made no purchases of cattle prior to his transaction with the defendant here involved; that his herd was tested for Bang's disease once a year by Dr. Sutherland, a veterinarian of Union, S. C.; that except for one reactor in 1951 or 1952, which was slaughtered, there had never been Bang's disease in his herd until after the transaction in question; and that at that time the herd was an accredited one, numbering about eighty.

[236 S.C. 149] It is undisputed that early in July, 1956, the plaintiff and his herdsman, Mr. Pelkie, in company with the defendant, visited the latter's pasture for the purpose of buying some cows; that the plaintiff at that time advised the defendant that he had an accredited herd and wanted 'clean' cows; that the defendant assured him that his cows were 'clean', that he had already had them tested for Bang's, but would have those that the plaintiff might buy tested again and would deliver them after the results of the tests were received; that the defendant and Pelkie selected, by neckchain numbers, thirty-one cows, from which, after having been tested, twenty were to be delivered at plaintiff's farm; and that delivery was made, about a week later, on July 14, and thereupon the plaintiff paid the agreed purchase price, $6,500.

The plaintiff testified that thereafter, following a call from a neighboring dairyman, he had Dr. Sutherland on August 31, 1956, draw blood for Bang's disease test of the cows that he had purchased from the defendant; that that test, reported by the State Veterinary Laboratory under date September 4, 1956, showed that six of them were reactors; that on September 7, 1956, Dr. Baker, of the State Veterinary Laboratory, visited his farm and ordered those six cows slaughtered immediately; and that his herd was thereupon quarantined. Further, that in the course of Dr. Baker's visit they telephoned to the defendant, who, when plaintiff reminded him of his guarantee that the cows were free of Bang's, replied that he 'couldn't guarantee them forever', but that if the plaintiff would send him the indemnity check that the plaintiff would receive from the State, and also the amount of salvage that he might get from the slaughtered animals, he (defendant) would replace those animals; and that accordingly the indemnity and salvage checks were sent to the defendant, who delivered three replacements to plaintiff's herdsman about a week later and the remaining three to the plaintiff on October 5, 1956. On September 28, 1956, plaintiff's herd, 75 cows, was bled by Dr. Sutherland for Bang's disease test, and the report of this test, dated October [236 S.C. 150] 1, 1956, showed no reactors and no suspects. On November 14, 1956, another test revealed four reactors

Page 733

and five suspects. Subsequent tests showed the following results:
Date No. of Cows Reactor Suspects
                -------- ----------- ------- --------
                12/17/56 76 0 7
                1/17/57 77 7 8
                2/20/57 70 1 4
                3/20/57 67 3 6
                4/17/57 65 0 5
                5/17/57 65 2 8
                6/19/57 54 3 6
                7/12/57 62 2 2
                8/27/57 57 1 1
                9/20/57 56 0 2
                10/22/57 55 0 1
                12/4/57 65 0 0
                

It appears from the testimony of Dr. Baker and that of Dr. Carter, the Director of the State Federal Livestock Disease Eradication Programs in South Carolina, that Bank's disease is infectious and contagious; that it may appear in an animal anywhere from fourteen days to seven or eight months after exposure; that all cows for addition to an accredited herd should, before entering that herd, test negative when or before they come on the premises and again thirty to sixty days thereafter; and that, once...

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9 practice notes
  • Campus Sweater & Sportswear v. MB Kahn Const., Civ. A. No. 76-0292-5.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 28, 1979
    ...the very nature of proof by circumstantial evidence. Cook, in fact, has been referred to as authority for that statement. Gary v. Jordan, 236 S.C. 144, 113 S.E.2d 730 (1960). Celotex, for another proposition of law, cites as authority Carter v. Boyd Construction Co., 255 S.C. 274, 178 S.E.2......
  • Aaron v. Hampton Motors, Inc., No. 17884
    • United States
    • United States State Supreme Court of South Carolina
    • March 13, 1962
    ...with reckless disregard of his lack of information as to its truth, his knowledge of its falsity is legally inferable. Gary v. Jordan, 236 S.C. 144, 113 Page 589 S.E.2d 730. We think, too, that there was sufficient evidence of damage to take that issue to the jury. In our opinion the record......
  • South v. Sherwood Chevrolet, Inc., No. 21643
    • United States
    • United States State Supreme Court of South Carolina
    • February 17, 1982
    ...realizing that he is without information as to its truth, and recklessly disregarding that lack of information." Gary v. Jordan, 236 S.C. 144 at 154-155, 113 S.E.2d 730 (1960) as cited in Carroll, supra, 259 S.E.2d at The key determination in the present case depends on the facts. The jury ......
  • Watson v. Wall, No. 17830
    • United States
    • United States State Supreme Court of South Carolina
    • August 31, 1961
    ...of proving it by clear, cogent and convincing evidence. Singleton v. Mullins Lumber Co., 234 S.C. 330, 108 S.E.2d 414; Gary v. Jordan, 236 S.C. 144, 113 S.E.2d W. Furman Wall, who lived in Spartanburg, had failed in business in 1927, and from then until his death in 1956 was in dire financi......
  • Request a trial to view additional results
9 cases
  • Campus Sweater & Sportswear v. MB Kahn Const., Civ. A. No. 76-0292-5.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 28, 1979
    ...the very nature of proof by circumstantial evidence. Cook, in fact, has been referred to as authority for that statement. Gary v. Jordan, 236 S.C. 144, 113 S.E.2d 730 (1960). Celotex, for another proposition of law, cites as authority Carter v. Boyd Construction Co., 255 S.C. 274, 178 S.E.2......
  • Aaron v. Hampton Motors, Inc., No. 17884
    • United States
    • United States State Supreme Court of South Carolina
    • March 13, 1962
    ...with reckless disregard of his lack of information as to its truth, his knowledge of its falsity is legally inferable. Gary v. Jordan, 236 S.C. 144, 113 Page 589 S.E.2d 730. We think, too, that there was sufficient evidence of damage to take that issue to the jury. In our opinion the record......
  • South v. Sherwood Chevrolet, Inc., No. 21643
    • United States
    • United States State Supreme Court of South Carolina
    • February 17, 1982
    ...realizing that he is without information as to its truth, and recklessly disregarding that lack of information." Gary v. Jordan, 236 S.C. 144 at 154-155, 113 S.E.2d 730 (1960) as cited in Carroll, supra, 259 S.E.2d at The key determination in the present case depends on the facts. The jury ......
  • Watson v. Wall, No. 17830
    • United States
    • United States State Supreme Court of South Carolina
    • August 31, 1961
    ...of proving it by clear, cogent and convincing evidence. Singleton v. Mullins Lumber Co., 234 S.C. 330, 108 S.E.2d 414; Gary v. Jordan, 236 S.C. 144, 113 S.E.2d W. Furman Wall, who lived in Spartanburg, had failed in business in 1927, and from then until his death in 1956 was in dire financi......
  • Request a trial to view additional results

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