Liquid Carbonic Co. v. Coclin

• Decision Date: 26 June 1931
• Docket Number: 13188.
• Parties: LIQUID CARBONIC CO. v. COCLIN.
• Court: South Carolina Supreme Court

159 S.E. 461

161 S.C. 40

LIQUID CARBONIC CO. v. COCLIN.

No. 13188.

Supreme Court of South Carolina

June 26, 1931

Appeal from Common Pleas Circuit Court of Barnwell County; J. Henry Johnson, Judge.

Action by the Liquid Carbonic Company against Nicholas D. Coclin doing business as Barnwell Fruit Company, in which defendant filed a counterclaim. From a judgment for defendant on the counterclaim, plaintiff appeals.

Affirmed.

Ninestein & Baxley, of Blackville, for appellant.

Harley & Blatt and Brown & Bush, all of Barnwell, for respondent.

BLEASE C.J.

The defendant purchased from the plaintiff a soda fountain outfit; there was a written contract between the parties plaintiff accepted on the purchase price of the new fountain an old fountain owned by the defendant; and the purchase price was evidenced by notes of the defendant to plaintiff the payment of which was secured by chattel mortgage over the soda fountain purchased. Defendant claimed the new fountain was not what it was represented to be by the plaintiff when the purchase was made, that it did not give satisfaction, and repeatedly demanded that it be put in shape. Plaintiff sent several of its representatives to Barnwell to put the fountain in shape, but the defendant continued to insist that the fountain would not work properly.

Finally, the parties went to law. The plaintiff, claiming default on the part of the defendant in meeting his promissory notes, and that it was entitled to repossess the soda fountain outfit, brought claim and delivery action. The defendant filed the necessary bond and retained possession of the outfit, which he continued to use, pending the determination of the cause. He filed his answer to the complaint, and therein he set up a counterclaim in which he alleged damages for breach of warranty.

The case was tried in the court of common pleas for Barnwell county before his honor, Judge J. Henry Johnson, and a jury. A verdict was directed in favor of the plaintiff for the recovery of the property, or its value, $2,179. (We assumed the debt evidenced by the notes.) The judge let the issues arising out of the counterclaim go to the jury, and they returned a verdict in favor of the defendant for $2,161.60.

Plaintiff has appealed to this court from the judgment against it in favor of the defendant. The exceptions are numerous, twenty-one in number. They complain that there was error in the admission of testimony, in the refusal to direct a verdict in favor of the plaintiff as to the defendant's counterclaim, on account of instructions given the jury and refusal to give other instructions, and for failure to grant a new trial. We shall treat the exceptions generally. It would incumber this opinion entirely too much to go into each one of them separately. Many of them raise, in different form, the same question. If it appears hereafter to those interested that any particular exception has been overlooked, they may feel assured that such is not the case, but that the exception has been considered and disposed of.

The written sales contract contains this provision: "It covers the entire agreement between us." Did the trial judge commit error in allowing respondent's counsel to ask appellant's witness, D. A. Cassil, on cross-examination, over appellant's objection, the following question: "Q. And at that time (time sale was made) it was understood by your salesman and Mr. Coclin (respondent) that one of the frigidaire units would properly cool the things that are sold? A. When this equipment was sold to Mr. Coclin, we knew that he bought the equipment to keep his ice cream hard and to serve the public and to keep water cold." That oral testimony is generally inadmissible to vary the term of a written contract is elementary. The answer to the question complained of, as well as others that followed, clearly show that appellant knew the uses and purposes for which the equipment was purchased by respondent. It was only intended to show appellant's knowledge of the requirements of respondent when he was negotiating with its salesman at the time of the sale. The representations made by the salesman as to the qualities of the soda fountain equipment, made for the purpose of inducing the respondent to purchase same, did not add a new element to the written contract or otherwise vary its terms. Empire Buggy Co. v. Moss, 154 S.C. 424, 151 S.E. 788. It is difficult to see, therefore, wherein the question and answer complained of in any wise varied the terms of the written contract.

The seller is not bound to warrant any article he sells, and he has the right to limit the warranty given as he sees fit in any manner, and to any extent acceptable to the purchaser. Black v. Kirkland Seed Co., 158 S.C. 112, 155 S.E. 268; Knight v. Engineering & Sales Co., 151 S.C. 303, 149 S.E. 20; International Harvester Co. v. Law, 105 S.C. 520, 90 S.E. 186.

The sales contract is in effect an express warranty that the equipment delivered would be the same as that bought and sold. But the written sales contract does not contain any other express warranty, nor does it contain any nonwarranty clause. In the absence of an express warranty or a nonwarranty clause, the law will imply a warranty that the article sold is fit and suitable for the purpose for which it is bought and for which a sound price is paid. The fact that the contract of sale is in writing does not necessarily exclude warranties implied by law. 23 R. C. L. 1402. There is no doubt but that appellant could have inserted in the contract a provision to the effect that all implied warranties were excluded, as was done in International Harvester Company v. Law, supra. This it did not do.

It is contended, however, that the above-quoted provision in the contract, to wit, that "It covers the entire agreement" between the parties, had the effect of excluding all implied warranties. We do not think so. Implied warranties are implications of law and not matters of agreement. If agreed upon, they become express warranties. Implied warranties may be expressly excluded. It will be observed that this provision in the contract relates only to the agreement between the parties and has nothing whatsoever to do with the implications of law.

The buyer of an article has a reasonable time within which to inspect the article purchased by him. If the purchaser however, knows of defects at the time of purchase, or accepts the article after a reasonable time without inspection, he waives all objections on the ground of such defects. A reasonable time, in all the circumstances, is a question for the jury. After discovering the defects, he may elect to rescind the contract and recover back the purchase price, but he may not recover back the purchase price unless the contract is first rescinded. If he has paid part or all of the purchase price, he may retain possession of the article as security. If no part of the purchase...