J.B. Colt Co. v. Freedman

• Court: South Carolina Supreme Court
• Writing for the Court: GARY, C.J.
• Citation: J.B. Colt Co. v. Freedman, 117 S.E. 351, 124 S.C. 211 (S.C. 1923)
• Decision Date: 30 April 1923
• Docket Number: 11206.
• Parties: J. B. COLT CO. v. FREEDMAN.

117 S.E. 351

124 S.C. 211

J. B. COLT CO. v. FREEDMAN.

No. 11206.

Supreme Court of South Carolina

April 30, 1923

Appeal from Common Pleas Circuit Court of McCormick County; Thos. S Sease, Judge.

Action by the J. B. Colt Company against John R. Freedman. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

Cothran and Fraser, JJ., dissenting.

Defendant testified that plaintiff's agent stated to him:

" 'I will install this plant and put it in to you for $267.45'; and I said, 'Will you put that in?' I said, 'Is that all to it?' and he said, 'That is every cent it will cost you.' I said, 'I have enough of agents,' and I said, 'If you will guarantee me that you will put that in for $267.45 and no more to it, I will accept it,' and he said, 'Twelve months to pay for it from date of installment with no interest.' He said, 'We will send a man and notify you when he comes,' and he said, 'He will be coming over to Mr Chamberlain's and to some others before he gets to you and he will notify you when he is here and put it up, and all you have to do is to give him your note for $267.45,' and I repeated it several times, 'Is that all of it?' and he said, 'That is every cent,' and I called my wife out and he explained it to her, and he said, 'I will put you in an ironing machine,' and my wife said, 'You do to suit yourself,' and I said, 'If that is all to it go ahead,' and he said, 'Just sign this contract showing that you accept that plant, accept the plant, and if it is not accepted to go no further until the plant is put up, and then we will expect your note,' and seemed to be in a hurry. In fact he never asked me to read it, and he had not made it out before I signed it, and by that time he began to fold it up and put it in his pocket, and he said--I will never forget his words--'You will have to pay in addition to this $267.45 that I would have to pay for the installment,' I will not say the word I used, but I said, 'If I had known that I would never have given you my order as I am done with agents,' and he hurried off and before he closed it, he said I had 30 days in which to cancel it, and I came to McCormick and wrote to the company to cancel it, that is just the way it was.

Q. Did he tell you what the contract was? A. He told me that the contract was to show that I agreed to take that plant when it came and give them my note for the money is what he told me.

Q. Did they ship that plant to you? A. Yes, sir; it was shipped to McCormick.

Q. Was it installed? A. No, sir.

Q. Did they ever come to install it? A. No, sir.

Q. Did you ever take it out of the depot? A. No, sir.

Q. You never did get the plant? A. No, sir.

Q. You did not read that contract before you signed it? A. No, sir; I was in a hurry and he was in a hurry. Q. By reason of being out of the plant, have you been damaged by reason of not having lights? A. Yes, sir; I had the money at that time.

Q. And you were ready to pay for it all the time and would have taken it at time? A. Yes, sir; if they had come across."

Defendant testified on cross-examination:

"He came to sell me a plant. He told me that was what he wanted to do. I was dealing at arm's length when I was trading with him. There was no trust relation between us. I was dealing with him as I would any one else from whom I would buy. He was not a friend of mine at all. He told me that it was not his to do it, but he would make this arrangement with me. I decided that it was that he was doing something that he was not allowed to do. He said he was not always allowed to do certain things. I do not know whether he had reference to the company or what he had been doing with different people. He kinder lead me to believe that it was a different trade from what he made most people. I signed the contract. He presented it to me after the trade was made and said, 'See here, you are in a hurry, and I can fill it out afterwards,' and left. As far as my memory serves me, it was a printed contract. That must be the contract; that is my signature. That is my signature, but it was not filled out when I signed it. I signed it in blank. The truth of the business is I was in a hurry and left. I did not read it, and he did not read it. I trusted it to his honor. I can read. I have not had very much business experience. I own a little land. I have had to make real estate deals once in a while. There are plenty of people in McCormick county that I trust to their honor and never read the contracts. Very few contracts I do read. The reason I did not pay for this thing was that they agreed to put it in for me. They said they would install it. If he had carried out his contract, I would have had no kick coming. For what he told me I would have been satisfied if he had put it in without additional charges. I first made up my mind that that was my defense when he told me, 'I will have to be frank with you, you will have to pay for installing it,' and I said, 'That is not my machine and I do not want it.' I wrote the company. The gentleman said it would be about 30 days before he would send the order in, and when the company wrote me they had received my order; that I had a right to countermand the order, and I wrote them to countermand the order; that the agent had fallen down on his order before he left my home, that is what I wrote them. When they first demanded that I take it out of the station, I found other reasons. This gentleman forfeited his trade to start with before he left my home, when he filled that out, he said, 'You will have to pay for installing it,' and I said, 'Do not ship it.' I asked for a copy of the contract, and he would not even give me a copy. I did not write to the company at once. I had no idea he would fill it out and mail it in; he said he would give me 30 days. I never could find out anything about his business, and I went to others where they bought like I did and they could not tell me anything. I did not back out of this trade because I got sick of it. When this thing first came here I did not write to the company or get some one else to write to them saying my reason for not taking it was that I heard the plants were not satisfactory. I did not make that as my reason. I got Mr. Murray, my attorney, to write the Colt Company, stating the gentleman fell down in his trade. I had this letter written by Mr. Murray to the company. I first made up my mind that this installing contract was my defense as soon as he left my home. I wrote to the company before suit was brought. When I got an answer I gave it to Mr. Murray. I had no knowledge of any one who knew anything about installing it; on the other hand, it was his contract to send some one to install it for me--that was his agreement. I was not in correspondence with a man in Augusta who could install it. I did not ask Mr. Murray to write to a man in Augusta. I did not write a letter to J. L. Mitchell at North Augusta. I do not remember anything from Mr. Mitchell at all. As soon as I found he had broken over was when I got sick--when I found the agent had backed out. I suppose I could have read that contract, but I trusted to his honor. I admit I was pretty careless in not doing it. I will not fool with any more agents. I had fooled with agents before was why I was scared of him. I did not read that contract. I admit I was pretty careless in not doing it."

Redirect examination of defendant:

"Q. Mr. Ross has tried to lead you off. Now bring it out clear so the jury will understand it; you testified that you all made the trade before you signed the contract? A. Yes sir; that is when it was made.

Q. And

your understanding about that contract, as you have testified, before the contract was signed that the plant was to be shipped to you and installed for $267.45? A. Yes, sir.

Q. And after this man had induced you to sign the contract, he told you he would be frank with you and that you would have to pay for the installing extra? A. Yes, sir.

Q. I understood you to tell Mr. Ross that when this man started away you asked him to give you a copy of the contract? A. Yes, sir; he promised to give it as he started off; he did not give it to me because I kicked on the ground that I had to pay for installing it, and I said I would not do it.

The Court: How about the $24, how did you find out that $24 was to be the cost of installing it? A. He did not say whether it would be $24 or $25; he said it will not be over $24 or $25, but you will have to pay that in addition to the $267.45, and then we parted right there.

Q. As soon as he told you the cost of installing it would be additional, you told him it was no contract? A. Yes, sir; and I told him not to consider the order.

Q. You asked him to give you the contract back and he refused? A. Yes, sir; he refused.

Q. Did you know this man? A. No, sir.

Q. Had you seen him before? A. No, sir.

Q. Did you know anything about the

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