McGregor v. Hurst

• Decision Date: 03 August 1927
• Docket Number: 12244.
• Citation: 138 S.E. 865,140 S.C. 464
• Parties: McGREGOR v. HURST.
• Court: South Carolina Supreme Court

138 S.E. 865

140 S.C. 464

McGREGOR v. HURST.

No. 12244.

Supreme Court of South Carolina

August 3, 1927

Appeal from Common Pleas Circuit Court of Chesterfield County; R. W Memminger, Judge.

Action by J. S. McGregor against J. T. Hurst. Judgment for plaintiff, and defendant appeals. Reversed.

Cothran J., and Purdy, A. A. J., dissenting.

Geo. K Laney and M. J. Hough, both of Chesterfield, and Mendel L Smith, of Camden, for appellant.

C. L. Prince, of Cheraw, for respondent.

WATTS C.J.

The appellant thus states the case:

"This action was commenced on the 12th day of March 1921, to recover the sum of $3,244.26, with interest thereon at the lawful rate, from the 25th day of October, 1920, as damages resulting to the respondent from the failure of the appellant to accept upon tender 42 bales of long staple cotton, in alleged breach of a contract of sale thereof; the said amount representing the difference between the contract price and the amount realized thereon in the open market after the alleged breach of the said contract. The defense of the appellant was that the cotton in question was rejected on account of its failure to meet the requirements in grade and staple of the contract between the parties.

A brief reference to the setting of this controversy may facilitate a better understanding of the issues involved, and may be thus substantially stated:

On the 6th day of April, 1920, appellant, engaged in business at Chesterfield, S. C., entered into a contract with the firm of McColl & Co., cotton dealers of Bennettsville, S. C., whereby he sold and agreed to deliver to the latter on the platform of the Chesterfield & Lancaster Railroad Company at Chesterfield, between the 1st day of September, and the 25th day of October, 1920, 100 square bales of lint cotton, aggregating in weight 50,000 pounds, at a stipulated grade of 'strict middling,' 'full 1 1/4-inch' staple and price of 60 cents per pound, said cotton to be graded in accordance with the United States government classification of cotton, and in the event of any disagreement between the parties as to grade or class of any of the said bales of cotton such differences were to be submitted to the New England Cotton Buyers' Association of Boston, Mass., whose decision should be final.

In the early part of October, 1920, the appellant, being somewhat apprehensive that he would experience some difficulty in securing the 100 bales to be delivered by him to McColl & Co. under their contract, purchased from the respondent, after some negotiation, 50 bales of lint cotton, under a verbal contract, to be delivered to him on the 20th day of October, 1920, which time was subsequently extended 5 days, at the price of 45 cents per pound. This cotton was admittedly bought by the appellant to be applied by him on the contract between him and McColl & Company. The respondent in turn purchased the 50 bales of cotton which were to be delivered under his contract with appellant from the firm of Coker & Co., of Hartsville, S. C.

On the 20th day of October, 1920, the respondent presented on the platform of the Chesterfield & Lancaster Railroad Company, at Ruby, S. C., 12 bales to be inspected and graded, which were sampled by D. K. McColl, who represented for this purpose the firm of McColl & Co., of which he was a member, and rejected as not being up to proper grade. Five days later, at the same place, the appellant, D. K. McColl, and one or two others, who were to assist in the sampling, made another effort to sample this cotton. The respondent was not personally present at this time, but was represented by an agent.

Differences arose between the parties in the course of the process of grading, which rendered the effort fruitless, with the result that samples of the 50 bales were forwarded by McColl & Co., to the New England Cotton Buyers' Association, of Boston, Mass., for their determination of grade and staple upon a type agreed upon by McColl and appellant as strictly in conformity with their written contract. This type was designated as 'McColl's elipe type,' and 'full 1 1/4-inch' in staple. Forty-seven bales failed to meet the requirements of the type submitted and contemplated in the written contract between appellant and McColl & Co., and were rejected. The remaining 3 bales were accepted and paid for as they came up to the submitted standard. The respondent refused to participate in any way in this effort at classification.

Shortly thereafter, however, the respondent, through the firm of Coker & Co., forwarded samples from 50 bales, which he testified were the same as those from which samples had been taken by appellant, to the New England Cotton Buyers' Association of Boston, to be determined upon a type selected by him, and designated as a government type '1 1/4-inch,' not 'full 1 1/4-inch,' as set out specifically in the Hurst-McColl & Co. written contract. In this effort at classification, neither the appellant nor McColl & Co. had any part whatever. The report on this grading was that 42 bales passed. This cotton was afterwards tendered to appellant by the respondent and refused.

This action was thereafter brought, as already stated, to recover as damages the difference between the contract price and lower price obtained on the open market in a sale of the cotton subsequent to appellant's refusal to accept it under his contract, with interest from the date thereof. The cause was tried at the April, 1924, term of the court, before Hon. R. W. Memminger, presiding judge, and a jury. At the close of the testimony by both sides, the respondent moved for a directed verdict in his favor, upon the ground that, under the undisputed testimony adduced, he had submitted his cotton to

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