Rainey v. Simon
| Decision Date | 03 May 1927 |
| Docket Number | 12198. |
| Citation | 138 S.E. 41,139 S.C. 337 |
| Parties | RAINEY v. SIMON. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; M. F Ansel, Judge.
Action by J. C. Rainey against H. H. Simon, doing business as the Simon Auto Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.
Bowen & Bryson and Dakyns B. Stover, all of Greenville, for appellant.
J Robert Martin, of Greenville, for respondent.
This is an action for damages based upon an alleged breach of warranty of the soundness of a truck sold by the defendant to the plaintiff.
The complaint alleges:
"That on the _____ day of _____, 19___, the plaintiff herein purchased of the defendant, Simon Auto Company, a Graham Brothers truck, paying to the said defendant a reasonable price demanded for the same, and in the sale of said truck by the defendant to the plaintiff herein, the defendant expressly and impliedly warranted said truck to be sound and free from defects and agreed to make good, free of any charges whatsoever to the plaintiff, any defects arising or showing up within a reasonable time after said sale, and that, notwithstanding said promise and warranty, the defendants have failed and refused to make good defects known to it arising in the said truck, whereby the plaintiff has had to replace the block and piston and been forced to spend large sums of money in hiring another truck while said repairs were being made, to his injury and damage in the sum of $500."
The defendant pleaded a general denial, the jury found in favor of the plaintiff for $300 and the defendant appeals.
The exceptions are five in number, but we shall not consider them all.
When the case was called for trial, the defendant made a motion that the plaintiff be required to elect whether he stood on an express warranty or an implied warranty. The court did not grant the motion, but remarked, "I will hear the testimony first." At the conclusion of the plaintiff's testimony, the following occurred:
By his first and second exceptions the appellant complains of error on the part of the trial judge in refusing to grant the defendant's motion to require the plaintiff to elect as to whether he would stand upon an express warranty or an implied warranty, and in holding that the defendant was responsible under both.
Upon trial of the case, a written warranty, covering a period of 90 days from the date of sale of the truck, was introduced in evidence as the warranty made by the defendant in the sale. However, it appears that the trial judge proceeded to try the case upon the theory that at the conclusion of the 90 days covered by the express warranty an implied warranty would arise.
It is true, as stated by the trial court, that the civil law rule prevails in this state; namely, that a sound price implies a sound article. Timrod v. Shoolbred, 1 Bay, 324, 1 Am. Dec. 620. But it is also a well-settled rule that an action cannot be maintained upon both an express warranty and an implied warranty (Simmons v. City Mills, 116 S.C. 432, 107 S.E. 903), and that an express warranty precludes an implied warranty (Mull v. Touchberry, 112 S.C. 422, 100 S.E. 152), and limits the warranty to that expressed (Murray v. Peacock, 117 S.C. 384, 109 S.E. 121).
In Wells v. Spears, 1 McCord, 421, the decision of the court is stated in the syllabus as follows:
"An express warranty of title does not exclude an implied warranty of soundness."
But no such situation is presented in the present case. The plaintiff...
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Simon v. Aetna Cas. & Sur. Co.
... ... opinion the defenses interposed by the surety company were ... not substantial, but technical in their nature; and if the ... jury so concluded, it must have necessarily affected their ... consideration of the case, and to this extent the court ... participated in their decision. See Rainey v. Simon, ... 139 S.C. 337, 138 S.E. 41; Latimer v. Electric Co., ... 81 S.C. 379, 62 S.E. 438; State v. Barfield, 128 ... S.C. 384, 122 S.E. 856; Lorick & Lowrance v. Walker & Co., 147 S.C. 178, 145 S.E. 33 ... The ... trial judge charged the respondent's fourth ... ...
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Black v. B.B. Kirkland Seed Co.
...must relate to the same or a closely allied subject. Wells v. Spears, 1 McCord, 423; Mull v. Touchberry, 112 S.C. 422, 100 S.E. 152; Rainey v. Simon, supra. It alleged that respondent applied to appellant for, and the latter sold and delivered to him what it represented to be, "genuine abru......
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Scott v. McIntosh
...must relate to the same or a closely allied subject. Wells v. Spears, 1 McCord, 423; Mull v. Touchberry, 112 S.C. 422, 100 S.E. 152; Rainey v. Simon, supra." In connection we also call attention to the case of Jumper v. Dorchester Lumber Company, 119 S.C. 171, 111 S.E. 881, and the case of ......
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Baltazzi v. McCormick
... ... have held that an action could not be maintained upon both, ... and that the express warranty precluded the implied ... warranty." Rainey v. Simon, 139 S.C. 337, 138 ... S.E. 41, at page 42 ... So much ... for the law of the case. Now, as to the "sense of the ... ...