Harry L. Hussmann Refrigerator & Supply Co. v. Cash & Carry Grocer, Inc.

• Decision Date: 11 March 1926
• Docket Number: 11940.
• Citation: 132 S.E. 173,134 S.C. 191
• Parties: HARRY L. HUSSMANN REFRIGERATOR & SUPPLY CO. v. CASH & CARRY GROCER, Inc., et al. SAME v. VAUGHAN.
• Court: South Carolina Supreme Court

132 S.E. 173

134 S.C. 191

HARRY L. HUSSMANN REFRIGERATOR & SUPPLY CO. v. CASH & CARRY GROCER, Inc., et al.

SAME v. VAUGHAN.

No. 11940.

Supreme Court of South Carolina

March 11, 1926

Appeal from Common Pleas Circuit Court of Charleston County; T. J Mauldin, Judge.

Separate actions by the Harry L. Hussmann Refrigerator & Supply Company against the Cash & Carry Grocer, Inc., and another and against C. A. Vaughan, in which defendants filed counterclaims, tried together and heard together on appeal. From a judgment granting new trials to defendants, plaintiff appeals. Reversed.

Wm. P Tillinghast, of Cocanut Grove, Fla., and Alfred Wallace, of Columbia, for appellant.

Moffett & Hyde and McMillan & Heyward, all of Charleston, for respondents.

COTHRAN J.

These two actions were tried together in the circuit court, and the appeals were heard together in this court. They involve precisely the same questions, and a determination of the appeal in the first case will be decisive of both.

The appeal is from an order granting a partial new trial upon the motion of the defendants, under the circumstances which will be detailed.

The plaintiff brought an action in claim and delivery for the possession of a described refrigerator, which it had sold to the defendants, taking a chattel mortgage thereon to secure the remainder of the purchase price. The plaintiff gave bond and took possession of the refrigerator; the defendants did not exercise their right of delivery under section 474 of the Code. The defendants answered, setting up two defenses: (1) A denial of the important allegations of the complaint, and (2) a counterclaim based upon the alleged right to rescind the contract of purchase; the damages claimed being composed of the cash paid, $764, and the expense of installation and freight, $550.38-total $1,314.38. In the counterclaim, the purchase of the refrigerator and the execution of a note secured by a mortgage upon it for the remainder of the purchase price were admitted. It contained an offer to return the refrigerator upon being reimbursed for the money paid upon the same.

The "case" contains the following statement:

"The defendant's counsel announced in open court, at the commencement of the two above-entitled actions, that the defendants admit that they executed the chattel mortgages referred to in the complaints, and admit that plaintiff in both cases was the owner and holder of said chattel mortgages on the property described in the complaints."

The presiding judge fully and correctly charged the law applicable to the case, and clearly stated the issues particularly upon the counterclaim of the defendants charging that, if the plaintiff had breached the contract and the defendants suffered damage, they were entitled to recover upon their counterclaim. The jury rendered the following verdict: "We find for the plaintiff possession of the goods"-which was indorsed upon the summons. In the second case the verdict was the same, and, in addition, there appeared upon the answer: "We find for the plaintiff." This was not signed by the foreman, and was not published with the other. Neither party made any objection to the verdict as rendered nor a motion to have it reformed.

The defendants made a motion for a new trial. The grounds for that motion are not displayed in the record for appeal, and we can only know what they were from the order of the circuit judge. This order was in effect an order for a new trial upon the counterclaim interposed by the defendants, upon the ground that it did not appear from the verdict that the jury had passed upon it, leaving, we assume, the verdict to stand so far as the right of the plaintiff to recover possession of the chattel was concerned.

We think that verdict sufficiently shows the intention of the jury to find in favor of the plaintiff for the possession of the property and against the defendants upon their counterclaim. If the defendants had entertained the objection to the form of the verdict which they now interpose, we have no doubt that upon the announcement of it the jury would have been instructed to reform it, and would have reformed it, as above suggested. The defendants had no right to remain silent under the apprehension that the irregularity might be corrected against their interest and afterwards complain of it .

In Bethea v. Tel. Co., 81 S.E. 675, 97 S.C. 385, the court said:

"The alleged irregularity did not involve the merits, but merely pertained to the rules of procedure. In such cases the irregularity must be called to the attention of the court at the earliest opportunity; otherwise it will be deemed to have been waived. (Cases cited.) That was not done in this case. The appellant, instead of making its objection to the form of the verdict as soon as it was read, waited until the jury separated, and then urged the alleged irregularity as a ground for a new trial. This was too late."

In Segars v. Segars, 63 S.E. 891, 82 S.C. 196, it is said:

"The defendants also assign as error that the verdict is irregular, in that it did not specify in whose possession the property was, there being two defendants who were not jointly bound, and there was a failure to specify against which of the defendants the verdict was rendered. The error was evidently merely clerical. Furthermore, the defendant should have made a motion to have the verdict made

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