Oxweld Acetylene Co. v. Davis
| Decision Date | 28 February 1921 |
| Docket Number | 10578. |
| Citation | 106 S.E. 157,115 S.C. 426 |
| Parties | OXWELD ACETYLENE CO. v. DAVIS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Laurens County; T. S Sease, Judge.
Action by the Oxweld Acetylene Company against S. J. Davis. Judgment for plaintiff, and the defendant appeals. Affirmed.
F. P McGowan, of Laurens, for appellant.
Dial & Todd, of Laurens, for respondent.
Action upon a written contract for the sale of a gas-lighting outfit, to recover the agreed purchase price; the plaintiff alleging delivery in accordance with the contract and nonpayment by the defendant.
On March 26, 1918, the defendant signed a written order for a lighting outfit to be furnished by the plaintiff f. o. b. at its factory, for which he agreed to pay $243.75. The order was obtained by an agent of the plaintiff. He promptly forwarded it to the home office, where it was duly accepted by the plaintiff on March 30th. On April 3d the outfit was delivered to a common carrier at Chicago, consigned open to the defendant at Laurens, S.C. The shipment arrived at Laurens on April 22d. The defendant was promptly notified of its arrival, but declined to accept it. The goods remained in the hands of the terminal carrier for the time required by law at the expiration of which they were sold by the carrier for charges as unclaimed freight, at what is commonly known as an "old hoss" sale, and we assume have become practically a total loss to both parties to this controversy.
On the 8th of April, five days after the goods were delivered by the plaintiff to the common carrier for transportation, the defendant wrote to the plaintiff, asking them to cancel his order for the lighting plant. This letter was received by the plaintiff on April 11th and was answered on the 12th, the plaintiff declining to accede to the request, and stating, "Your contract was accepted by this company on March 30th and is not subject to countermand." The defendant replied to this letter on April 16th, reiterating his countermand, and declaring that he would not take the outfit at any price, as he had learned "they are dangerous."
The defendant interposed several defenses to the action: (1) That the agreement was that the outfit should not be shipped until August 1st; that the shipment on April 3d was therefore premature; (2) that the contract was induced by the fraudulent misrepresentations of plaintiff in reference to the quality and adaptability of the machine to domestic uses; (3) that the order had been countermanded soon after it was given; (4) that the plaintiff by its negligence had brought upon itself the loss occasioned by the defendant's countermand and refusal to accept the outfit. At the conclusion of all of the testimony each party moved for a directed verdict; the issue being dependent upon the efficacy of the foregoing defenses. The circuit judge granted the motion of the plaintiff, and a verdict in its favor was returned for $260.81.
The main question in this case is the right of the defendant to countermand the written order for the lighting outfit signed by him on March 26, 1918.
An order for goods is but a proposal; it is not a contract until it has been accepted by the seller. Upon written acceptance, it becomes a contract executory, although in a sense executed, just as the formal execution of a note or mortgage or other contract by which for a valuable consideration one agrees to do or not to do a particular thing does not alter the executory character of such engagement. When the seller acts upon the accepted order by delivering the goods, the engagement assumes the character of an executed contract.
While the written order for the goods remains unaccepted by the seller, being a mere proposal, it may at any time be countermanded by the buyer, without any legal liability on his part to the seller, unless, as suggested by the court in Moneyweight Scale Co. v. Gordon Mercantile Co., 102 S.C. 419, 86 S.E. 1060, there be an agreement founded upon consideration that there shall be no countermand.
After the order has been accepted by the seller and the proposal thereby becomes an executory contract, in the absence of an express stipulation in the contract to the contrary, the buyer may before delivery recall the order and stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other party for the loss he may have sustained by reason of having his performance of the contract checked. This right, however, does not exist where it is expressly denied by the terms of the contract, as in this case, the contract providing:
"Upon the acceptance of this order the contract so made cannot be canceled or revoked by either party * * * except by agreement in writing."
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... ... and Carter, JJ., dissenting ... W.H ... Nicholson and R. F. Davis, both of Greenwood, for appellant ... Mays & Featherstone, of Greenwood, for ... delivered." ... See, to ... the same effect, our own cases of Oxweld" v. Davis, ... 115 S.C. 426, 106 S.E. 157, Colt v. Britt, 129 S.C ... 226, 123 S.E. 845 ... \xC2" ... ...
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...asserting a right to avoid the contract for fraud. See J. B. Colt Co. v. Kinard, supra; J. B. Colt Co. v. Freedman, supra; Oxweld Acetylene Co. v. Davis, supra; Cape Fear Co. v. Matheson, 69 S.C. 87, 48 S.E. 111; Sloan v. Courtenay, 54 S.C. 314, 344, 32 S.E. 431; Montgomery v. Scott, 9 S. C......
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...debt before it falls due according to the terms of the mortgage, unless the right has been reserved." 27 Cyc. 1389. In Oxweld Co. v. Davis, 115 S.C. 426, 106 S.E. 157, approved in Colt v. Britt, 129 S.C. 226, 123 845, it was held that, where a written contract provides no specific time for ......