Nat'l Tire & Rubber Co v. Hoover

• Decision Date: 13 May 1924
• Docket Number: (No. 11505.)
• Citation: 122 S.E. 858
• Court: South Carolina Supreme Court
• Parties: NATIONAL TIRE & RUBBER CO. v. HOOVER.

122 S.E. 858

NATIONAL TIRE & RUBBER CO.

v.HOOVER.

(No. 11505.)

Supreme Court of South Carolina.

May 13, 1924.

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by the National Tire & Rubber Company against H. F. Hoover, trading under the name of the Rex Tire Company. From a judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.

The third exception follows:

(3) His honor, the presiding judge, erred in remarking, in the presence of the jury, that the business was launched and established to carry on an especial business; the error being that said statement assumed the correctness of the defendant's evidence, whereas this was a disputed issue in the case for the jury to determine from all the testimony, and was well calculated to influence and to be considered by the jury in arriving at their verdict.

Frierson & McCants and Hunter A. Gibbes, all of Columbia, for appellant.

E. J. Best and Paul A. Cooper, both of Columbia, for respondent.

WATTS, J. The "case" contains the following statement:

"This action was commenced in the county court for Richland county by service of summons and complaint on the * * * day of May, 1921, to recover the sum of $2,622.13 on an open account for automobile tires and tubes sold and delivered by the plaintiff to the defendant. The defendant by his answer alleges that the goods referred to were inferior and defective, ' and that there was failure of consideration for same in whole or in part; that therefore nothing is due to the plaintiff on said account; and, in addition thereto, sets up a counterclaim in the sum of $3,000, alleging that the defendant paid plaintiff $6,000 for the tires and tubes, and that they were faulty, rotten, and defective and of no value, and on account thereof there was a failure and want of consideration in whole or in part, and that defendant suffered a loss of $3,000, and alleg-ing that he had been damaged by reason of the sale to him by the plaintiff of the defective tires and tubes, as a result of which he had to close his business. Plaintiff replied to this counterclaim in the form of a general denial. The jury rendered a verdict in favor of the defendant on the counterclaim in the sum of $3,000, judgment was entered thereon, and thereafter in due time this appeal was taken."

Exception 1 complains that the presiding judge committed error in permitting H. P. Hoover, the defendant, to testify with respect to overhead expenses in running the business, for the purpose of selling tires and tubes purchased by him from the plaintiff, when such testimony, the plaintiff contends, was not in response to any allegation of the defendant's counterclaim, and, as a matter of law, were not recoverable under the facts of this case.

Exception 2 complains of error on the part of his honor in charging the jury as to overhead expenses, incurred by the defendant in conducting the business, for the purpose of selling tires and tubes which were unsalable. We find the following ruling by his honor when the case was being tried:

"Mr. McCants: I think this is going pretty far afield—are we to be held for all expenses he was put to in running this business?

"The Court: That necessarily was an expense, and 1 was looking over some general principles this morning. Here is a question I have to answer. Suppose 1 go into a business for selling certain products—a certain product —to get a certain part of the price coming to me on that product, and suppose that product is unsound, now, gentlemen (addressing jury), 1 am not saying there was unsoundness here, 1 am just supposing—now suppose that the product is unsound and in order to carry on that business 1 have certain overhead expenses, and suppose I find out the business is a failure as a direct result of unsoundness, what becomes of these overhead expenses I was put to in establishing that business, either to the full extent of the expenses, or to pro rata share of the expenses as the case may be."

The general rule is that for a breach of contract the defendant is liable for whatever damages follow as a natural consequence and proximate result of his conduct, or which may reasonably be supposed to have been within the contemplation of the parties at the time the contract was made as a probable result of a breach of it.

The general rule as to the measure of damage is the difference between the actual value of the property at the time of the sale and what...