Greenwood Cotton Mill v. Tolbert

• Decision Date: 03 July 1916
• Docket Number: 9436.
• Citation: Greenwood Cotton Mill v. Tolbert, 105 S.C. 273, 89 S.E. 653 (S.C. 1916)
• Parties: GREENWOOD COTTON MILL v. TOLBERT.
• Court: South Carolina Supreme Court

89 S.E. 653

105 S.C. 273

GREENWOOD COTTON MILL v. TOLBERT.

No. 9436.

Supreme Court of South Carolina

July 3, 1916

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

Action by the Greenwood Cotton Mill against T. P. Tolbert. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. N Graydon, of Abbeville, for appellant.

Grier Park & Nicholson, of Greenwood, for respondent.

GARY C.J.

This action arises out of the fact that the defendant sold to the plaintiff 400 bales of cotton, 4 of which were water-packed. The following agreed statement of facts appears in the record:

"The defendant offered the cotton to the plaintiff for sale in the usual manner, and asked the plaintiff to cut the same and sample it, and the plaintiff through its agent cut and sampled the cotton, and purchased the same on the sample taken from, and the only opportunity of examination which the plaintiff had was that of an external examination of the condition of the cotton. After the cotton was carried to the mill, and opened for the purpose of manufacture, it was discovered that 4 bales of it had been water-packed in or near the center of the bales, so that it was impossible to detect this from an external examination and it was found in the 4 bales 348 pounds of water had been packed. Eight hundred and sixty-six pounds were taken from the bales in wet and water-packed condition, and, after being dried, the damaged cotton only weighed 518 pounds. The damaged cotton was worth less than $10. After this condition was found defendant was notified and asked to examine the cotton, and payment was demanded of him for the damaged cotton and water, which he refused to pay. It was not charged or claimed that defendant himself actually false packed or water-packed the cotton, but that he sold the cotton by the sample which plaintiff took from the cotton, and it was, as a matter of fact, water-packed."

At the close of the plaintiff's testimony, the defendant's attorney made a motion, for the direction of a verdict, on the following grounds: "That the attempt is made here to recover on an implied warranty, and there is no allegation in the complaint of any warranty, expressed or implied. In order for a person to recover on a warranty, either expressed or implied, there must be an allegation of warranty in the complaint, either expressed or implied. That even if there was an allegation of implied warranty in this case, it does not apply to the facts of this case, as testified to by the witnesses. The testimony is undisputed that the party who bought the cotton had full opportunity to examine the cotton before he bought it and to ascertain its real condition. And if he failed to examine the cotton, why then it is a case where the loss will fall upon the buyer. That the law does not imply warranty of soundness of cotton or other commodities when purchased by sample; and, where the defect is either a patent defect, or a defect which is not known to the seller, unless there is an allegation in the complaint, or evidence to show fraud on his part, or false statement or something by which he is misled, the buyer to accept the goods."

The motion was refused and--

"the defendant then offered his testimony, which showed that he sent the cotton to two different gins to be ginned and packed. That he was not present when the cotton was handled by the gins, and had no notice or knowledge whatever that there was any water packed in the cotton. That he sold the cotton, the 4 bales, as a part of a large lot of about 400 bales. That the cotton was carefully gone over by the weighers, and docked for any wet or damaged cotton which appeared by external examination ."

The jury renderd a verdict in favor of the plaintiff, for $106.91, and the defendant appealed.

One of the questions raised by the exceptions is preliminary in its nature, to wit, whether there was error, on the part of his honor, the presiding judge, in refusing to direct a verdict in favor of the defendant, on the ground that there is no allegation of warranty in the complaint, either express or implied. This assignment of error pertains to the pleadings, and if the complaint does not contain allegations sufficient to constitute a cause of action, the proper remedy was by demurrer, and not by a motion to direct a verdict.

There is, however, another reason why the exception cannot be sustained. The question whether the sale of the cotton in the manner described in the complaint created a warranty presented a proposition of law.

"Pleadings under the Code are not required to formulate the state of facts with reference to the technical incidents of the right of action to which the plaintiff may suppose himself entitled. It is the court that refers the facts to their appropriate form of action, for the purpose of its judgment, and not the pleader, as at common law. The consequence is that when a fact is pleaded, whatever inference of fact or conclusions of law may properly arise from it are to be regarded as embraced in such averment." Mason v. Carter, 8 S. C. 103; Jerkowski v. Marco, 56 S.C. 241, 34 S.E. 386; McBrayer v. Mills, 62 S.C. 36, 39 S.E. 788; Parks v. Cotton Mills, 70 S.C. 274, 49 S.E. 871; Rosemand v. Railway, 66 S.C. 91, 44 S.E. 574.

The next question that will be considered is whether there was error in refusing to direct a verdict on the ground that the law does not imply warranty of soundness, of cotton or other commodities, when purchased by sample, and where the defect is either patent, or is not known to the seller, unless there is an allegation in the complaint, or evidence to show fraud on his part, or false statement, or something by which he misled the buyer to accept the goods. We deem it only necessary to cite the following authorities, to sustain the proposition that the law implies a warranty under the circumstances mentioned in this case: Carter & Harden v Walker, 2 Rich. 40; Kauffman v. Stuckey, 37 S.C. 7, 16 S.E. 192...