Heil-Quaker v. Swindler, Civ. A. No. AC-1722.

• Decision Date: 17 June 1966
• Docket Number: Civ. A. No. AC-1722.
• Citation: 255 F. Supp. 445
• Court: U.S. District Court — District of South Carolina
• Parties: HEIL-QUAKER, Plaintiff, v. James T. SWINDLER, d/b/a National Wholesale Heating Co., and Frances B. (Mrs. James T. Swindler) Swindler, Defendants.

255 F. Supp. 445

HEIL-QUAKER, Plaintiff, v. James T. SWINDLER, d/b/a National Wholesale Heating Co., and Frances B. (Mrs. James T. Swindler) Swindler, Defendants.

Civ. A. No. AC-1722.

United States District Court D. South Carolina, Columbia Division.

June 17, 1966.

J. Wesley Drawdy, Columbia, S. C., for plaintiff.

Melton Kligman, Columbia, S. C., for defendants.

ORDER

SIMONS, District Judge.

This is a diversity action on an open account for the purchase price of certain heating and air conditioning equipment sold to defendant James T. Swindler, doing business as National Wholesale Heating Company, between March 16, and August 28, 1964. Plaintiff's complaint alleges that a current balance of $12,925.91 is due and that defendant Frances B. Swindler on March 11, 1964 agreed in writing to guarantee debts of defendant James T. Swindler, d/b/a National Wholesale Heating Company, in amounts up to $20,000.00. In their amended answer defendants¹ allege that on August 3, 1964 a credit memorandum of $651.75 was issued by agents of plaintiff corporation, and that a subsequent credit memorandum was issued for $6,389.25 by plaintiff's agent evidencing return of equipment purchased for which defendants never received credit. They further allege that $1,048.50 worth of equipment was defective and that defendants now offer to return these units for credit and as offset against any indebtedness that they owe. They further allege that on another occasion one of the agents of plaintiff obtained one of the furnaces charged to defendant and installed it in a residence in which defendant had no interest, and that plaintiff's agents on other occasions did pick up from defendant's warehouse other merchandise and units for which defendant should be credited in the amount of approximately $1,000.00, for which credit memorandums have never been issued. Defendant additionally counterclaims for special damages for defective units purchased from plaintiff and damages arising from their installation. Defendant additionally claimed storage fees and administrative costs in the sum of $1,000.00 against plaintiff. In his total amount of setoffs, credits and counterclaims, defendant demands judgment against plaintiff in the sum of $2,810.05 in excess of the amount alleged to be due by defendant to plaintiff in the latter's complaint. Plaintiff's reply denies the agency alleged by defendant. Issues were joined and this matter came on for trial before this court sitting without a jury.

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff is a corporation organized and existing under and by virtue of the laws of the State of Delaware with its principal place of business in Marshall County, Tennessee.

2. Defendant James T. Swindler, d/b/a National Wholesale Heating Company and defendant Frances B. (Mrs. James T. Swindler) Swindler are citizens and residents of the State of South Carolina.

3. Plaintiff sold to defendant certain merchandise consisting of household furnaces and air conditioning units, together with parts for maintenance and repair of said equipment between March 16, 1964 and August 15, 1964.

4. These goods purchased by defendant from plaintiff were charged on account upon which there remains an unpaid balance of $12,925.91, in the absence of any credits and setoffs to which defendant may be entitled.

5. In order to induce plaintiff to make such sales on open account to defendant James T. Swindler, both defendants signed personal unconditional guarantees in writing agreeing to pay the purchase price of said goods, if defendant James T. Swindler d/b/a National Wholesale Heating Company failed to pay up to a maximum of $20,000.00. Induced by these promises, plaintiff sold goods to defendant.

6. Defendant failed to pay, and plaintiff made demand for payment to defendants under the personal guarantee. No payment was forthcoming and plaintiff instituted this action.

7. Plaintiff employed one B. W. Kirby, a manufacturer's representative, to represent it in South Carolina, and said B. W. Kirby and his son, Graham W. Kirby held themselves out as agents of plaintiff in transactions with James T. Swindler doing business as National Wholesale Heating Company. Although Kirby represented other companies, plaintiff held Kirby out as its district manager. In this capacity Kirby had obtained from defendants the personal guarantee, as well as a financial statement from defendant James B. Swindler, prior to any sales and deliveries being made by plaintiff to said defendant.

8. Under instruction of plaintiff, merchandise returned by defendant to plaintiff for which the latter has acknowledged credit is reflected in the claimed balance due of $12,925.91, and had been checked out of defendant's warehouse by Kirby who personally made arrangements with defendant for the return of such merchandise. Although there is a factual dispute as to how much returned merchandise Kirby actually received from defendants on behalf of plaintiff, the court finds that Kirby and his son received from defendants such returned merchandise of a total value of $7,041.50. (Defendant's ex. A.)

9. B. W. Kirby was also plaintiff's representative in South Carolina to check on its behalf any defective units, or complaints made by any purchaser of such units. B. W. Kirby had customarily performed this service for the plaintiff in the past.

10. It was admitted at trial that plaintiff had instructed B. W. Kirby to pick up a heating unit from defendant and redeliver it to a firm in Charlotte, North Carolina, for which credit in the amount of $193.50 has never been given by plaintiff to defendant.

11. Merchandise returned to plaintiff which was reflected by a credit memorandum in writing (Defendant's ex. C) issued by Graham Kirby as agent for the plaintiff company on August 3, 1964 in the sum of $651.75 was credited to defendant and is reflected in the claimed balance of $12,925.91.

12. On or before January 4, 1965, the parties by means of telephone conversations and exchange of letters between defendant's attorney and plaintiff's representative agreed that defendant would be liable for a ten percent restocking charge, returned freight charges, and repair costs, if any, for the return of any equipment which he purchased from plaintiff. Some of the returned merchandise was accepted by plaintiff on this basis, and some of the merchandise was accepted by plaintiff at full value, that is, the purchase price.

13. Some time between January 4, 1965 and February 18, 1965, exact date not determinable, plaintiff's agent B. W. Kirby issued to defendant a credit memorandum while acting within the implied and/or apparent scope of his authority from plaintiff for equipment received by plaintiff or by B. W. Kirby or Grady Kirby in its behalf, in the total sum of $7,041.50; and the court finds that defendants are entitled to a total credit in such amount, which includes the $193.50 credit to which defendant is entitled as set forth in paragraph 10 above.

14. Against this sum of $7,041.50 plaintiff has already given defendant benefit of the following credits in arriving at its net balance of $12,925.91 claimed to be due it by defendants, to wit:

a. $3,009.29 which represents the figure of $3,622.75 as shown upon plaintiff's credit memorandum issued to defendant under date of March 17, 1965 (Def.'s ex. B), less the agreed ten percent restocking charge of $362.28, labor and parts cost of $56.78, and returned freight charges of $194.40.

b. $651.75 for the return of equipment listed in credit memo dated August 3, 1964 (Def.'s ex. C), picked up from defendant by Graham W. Kirby, son of plaintiff's agent B. W. Kirby.

Thus, against his entitlement of $7,041.50 in credits defendant has already received proper credit for a total of $3,661.04, leaving a credit balance of $3,380.46 to which he is entitled. As to the equipment of the value of $3,622.75 which has been admitted by plaintiff to have been returned to it by defendant, under the arrangement set forth in paragraph 12 above plaintiff is entitled to a ten percent restocking charge of $362.28, plus $194.40 returned freight charges, plus $56.78 for labor and parts to repair the returned equipment, for a total of $613.46 which amount should also be charged against the remaining gross credit to which defendant is entitled, that is, from the figure of...