Livingston v. Re Id-hart-parr Co

• Court: South Carolina Supreme Court
• Writing for the Court: COTHRAN, J
• Citation: Livingston v. Re Id-hart-parr Co, 109 S.E. 106 (S.C. 1921)
• Decision Date: 10 October 1921
• Docket Number: (No. 10725.)
• Parties: LIVINGSTON. v. RE ID-HART-PARR CO.

109 S.E. 106

LIVINGSTON.

v.RE ID-HART-PARR CO.

(No. 10725.)

Supreme Court of South Carolina.

Oct. 10, 1921.

Appeal from Common Pleas Circuit Court of Richland County; Edward McIver, Judge.

Action by T. M. Livingston against the Reid-Hart-Parr Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The exceptions were as follows:

(1) That his honor erred in excluding the testimony of the witness G. W. Langford, offered for the purpose of showing that, as supervisor of Saluda county, he had purchased one or more of the New Hart-Parr tractors in 1917, and that they were unsuitable for and incapable of doing the work of pulling plows and road machinery, and that the county had made numerous complaints to the defendant prior to the sale of the tractor to the plaintiff, because the said testimony was relevant and competent for the purpose of showing knowledge on the part of the defendant, at the time of making the sale to plaintiff, that the tractors were not suitable for, or capable of doing, the work represented by defendant, and for which it was purchased by the plaintiff.

(2) That his honor erred in excluding the testimony of the witness Thomas Taylor, offered for the purpose of showing that he purchased a Hart-Parr tractor from the defendantin 1916, for use on his farm, to pull plows and farm machinery, and that it was not suitable for, or adapted to, such purposes, and was impracticable for such uses and purposes, and that he had made repeated complaints to the defendant prior to July, 1918, in regard thereto, because the said testimony was competent for the purpose of showing knowledge on the part of the defendant at the time it made the sale to plaintiff that the machine was not suitable for, capable of, or adapted to the purposes represented by the defendant, and for which plaintiff made the purchase.

(3) That his honor erred in excluding the testimony of the witness R. O. Dunning, a mechanical engineer, offered for the purpose of showing that the Hart-Parr tractor was so constructed as to be impracticable, incapable of, and not adapted to the purposes of a farm tractor, because the said evidence was competent and relevant to show that said machine was not suitable for, or adapted to, the purposes for which it was bought by the plaintiff, and for which defendant represented it to be suitable and adaptable, and that the defendant knew this at the time of the selling it to the plaintiff.

(4) That his honor erred in charging the jury: "I charge you, however, that although a sound price demands a sound commodity, still, if one knows that he is not getting a sound commodity at the time he makes his purchase, then that principle of law would not apply. In other words, gentlemen, you know a man can buy a blind or crippled horse, if he wants to, and pay what that horse is worth, and if he knows that the horse is blind or crippled, and still undertakes to buy him, then he would buy that horse, and he could not undertake to rescind the contract on account of the fact that the article purchased was not a sound commodity, if he bought it with his eyes open, knowing that it was in that condition at the time he bought it"—because:

(a) There was no evidence that plaintiff knew that the machinery was unsound or unfit for the purposes for which it was sold to him, and for which he bought it.

(b) Defendant in its testimony claimed the tractor was new, sound, and first-class.

(c) The plaintiff, having paid full price for a new and sound machine, was entitled to such a machine.

(5) That his honor erred in charging the jury: "I charge you that the plaintiff agreed to receive that machinery, and to pay the freight on it from Charles City, Iowa, subject only to the warranty of the manufacturer, and which was adopted by the seller as his warranty in this particular case, because he says he accepts this contract and signs his name to it. I charge you that under this warranty, if this is the entire contract, the only warranty is that the New Hart-Parr tractor was well made and of good material and workmanship; that, if any of the machinery breaks within one year from the delivery of it, that they would replace that part of the machinery, if it broke on account of faulty material or workmanship, and they do not warrant the batteries, spark plugs, or other electrical equipment connected with the machine"—because the said warranty only purported to be a warranty by and in behalf of the manufacturer. It did not affect or relate to the dealer, which is the defendant in this case, and it in no wise excluded or prevented a warranty from the defendant, as is alleged and claimed by the plaintiff in this case.

(6) That his honor erred in charging the jury, at the request of the defendant:

"(1) 'Statements by the vendor' (that is, the seller) 'of property as to its condition, quality, character, capacity, or adaptability to certain uses, are generally regarded as mere expressions of opinion, and, when such is the case, do not constitute fraud.' Yes, gentlemen, there is a narrow margin or line there that I will try to explain to you. That is the law. That is the law laid down by Blackstone, one of the earliest law-writers we have, and he illustrates it this way: That a merchant in selling his goods to a customer in his store praises up his goods and speaks of how suitable they are for the purpose the party wants them for, and unless there is an actual misrepresentation of fact, then that is merely regarded as the effort of the seller to dispose of his goods, showing them off to advantage; and where no fraud is intended, and where it is mere expression of opinion in the praise of his goods, it does not constitute fraud."

And in further charging the jury, at the request of the plaintiff:

"(4) 'In reference to the cause of action for breach of warranty, the jury are charged that any distinct affirmation as to the quality or condition of a thing sold by the owner, during the negotiations for the sale, which it may be supposed was intended to cause the sale, and was operative in producing it, and relied on by the purchaser, is an express warranty; and, if it turns out to be untrue, the owner and seller would be liable to the purchaser, therefor.' I have already charged you that"—because:

(a) The charge is calculated to confuse the issues before the jury and the correct ruling of law.

(b) Statements by a seller of machinery and dealer in machinery, as to its condition, quality, capacity, or adaptability, are in their nature warranties.

(7) That his honor erred in charging the jury: "(8) 'I charge you that, with respect to the second cause of action, set forth in the amended complaint in this action, the rights of the parties must be determined according to their contract, and that the express written order which has been introduced in evidence is alone the evidence of what was intended by the contracting parties.' I charge you that, provided the written contract includes and covers the complete and entire agreement between the parties. I have already practically charged you that"—because: It is a charge on the facts.

(8) That his honor erred in charging the jury: "(9) 'If you find from the evidence that the plaintiff retained possession of the tractor involved in this suit for more than six days after the first day's use of the tractor by the plaintiff, then I charge you that then and in that event such retention of possession by the plaintiff would be conclusive evidence that the warranty given by the seller had been fulfilled, except as to the defective parts, and the plaintiff could not recover on the second cause of action set forth in the complaint.' I charge you that, unless, I add, the defendant by its acts waived that provision of the contract re-quiring notice to be given in six days, or the return of the property to be given in six days. I charge you that, unless the defendant waived it, as I have previously in this charge explained to you. I have charged you that one could waive and relinquish and forego the enforcement of a right, and if he did that, then he could not afterwards hold the other party to that right, as I illustrated to you about the insurance policy"—because:

(a) The provision as to retaining possession for more than six days only applies to the warranty by the manufacturer, and has no application to the warranty or agreement between the dealer or seller and the plaintiff.

(9) That his honor erred in refusing to give the plaintiffs fifth request, to wit: "False warranty does not depend upon or require knowledge of its falsity at the time it is made. The seller is held bound by his statement"—because the same contains a correct proposition of law applicable to this case.

(10) That his honor erred in refusing the plaintiff's motion for a new trial, because:

(a) His honor had erred in excluding the testimony of the witnesses Langford, Dunning, and Thomas Taylor, tending to prove fraud and guilty knowledge on the part of the defendant at the time of making the contract of sale and representations to the plaintiff.

(b) The evidence showed conclusively that, while plaintiff paid full price for a new machine, he did not receive a new machine, and there was no evidence upon which to base a verdict to the contrary.

(c) The evidence showed that the machine sold to the plaintiff had worn and defective parts, and that defendant's contract of guaranty was breached.

(d) There was not sufficient evidence to support the verdict for the defendant.

The reason of the court for excluding testimony of the witness Langford, complained of in exception No. 1, was that it would open a limitless inquiry as to a number of sales made to other people, and that inquiry must be confined to the particular machine in question to show knowledge on the part of the defendant that the machine was not giving satisfaction.

D. W. Robinson, of Columbia, for appellant.

Barron McKay, Frierson & McCants, all of Columbia, for respondent.

COTHRAN, J....