Robert Buist Co. v. Lancaster Mercantile Co.

• Decision Date: 11 July 1905
• Parties: ROBERT BUIST CO. v. LANCASTER MERCANTILE CO.
• Court: South Carolina Supreme Court

52 S.E. 789

73 S.C. 48

ROBERT BUIST CO. v. LANCASTER MERCANTILE CO.

Supreme Court of South Carolina

July 11, 1905

On Rehearing, November 7, 1905.

Appeal from Common Pleas Circuit Court of Lancaster County; Watts Judge.

Action by the Robert Buist Company against the Lancaster Mercantile Company. From the judgment rendered, plaintiff appeals. Affirmed.

R. E. & R. B. Allison, for appellant. Green & Hines, for respondent.

POPE C.J.

This action has been on appeal once before. See 68 S.C. 523, 47 S.E. 978. There were two points decided on that appeal, to wit: (1) That it was the duty of the jury to accept the charge of the circuit judge and return a verdict in accordance therewith, and upon a failure to do so that this court will order a new trial. (2) That where a contract is silent as to whether the shipper of a consignee shall pay the freight on the shipment the presumption of the law is that the consignee will pay the freight of shipment, but that this presumption of law may be rebutted by parol or other testimony that the shipper was to pay freight from the point of shipment to the destination of such shipment. 21 A. & E Ency. of Law. 1094. Trial de novo was therefore ordered. The new trial took place before Judge Watts and a jury. The verdict was for plaintiff for the sum of $97.40. A motion for a new trial upon the minutes of the court was then made by the plaintiff. After argument the circuit judge refused the motion. Upon entry of judgment, the plaintiff alone appealed.

The following were the exceptions of the plaintiff:

"(1) It is respectfully submitted that the testimony especially the refusal of the defendant to accept and pay for the potatoes at the price specified in the order (a) for the purchase, all show that the contract was over the freight charge; and the circuit judge having charged the jury that the said order in writing for the purchase raised the presumption that the defendant was bound to pay the freight, unless the defendant by some direct positive proof parol or written, could show that the plaintiff had agreed to pay said freight, and no such agreement by plaintiff or any authorized agent having been shown, the circuit judge erred in refusing the motion for a new trial.

(2) The Supreme Court having held at the former hearing in this case that the written order for the purchase raised the presumption that the defendant was liable to pay the freight, unless the defendant could show by parol testimony outside of that order that the plaintiff had positively agreed to pay the freight; and no such parol or other testimony to establish such agreement having been produced, the jury failed to follow the law as given by the circuit judge, it was error in the judge to refuse to set aside the verdict.

(3) It being admitted that the order in writing for the purchase was sent up, both in the answer and the admissions on the trial, this was an established fact which could not be contradicted; and the presumption of law raised thereby that defendant was bound to pay the freight, and, no testimony having been adduced to rebut this presumption, the circuit judge erred in refusing a new trial.

(4) Because the circuit judge erred in allowing L. C. Lazenby, who purchased the potatoes, to testify that John Mahan sold him the potatoes delivered in Lancaster, without showing that John Mahan was authorized by the Robert Buist Company to do so, and to testify before the jury that the order in writing for the purchase of the goods was not the order of the defendant, against the protest of the plaintiff.

(5) Because the circuit judge erred in allowing L. C. Lazenby to testify before the jury that John Mahan, in making the contract for the purchase, acted as the agent of the Robert Buist Company, without showing that he was authorized by the plaintiff to make the contract contended for, and without showing that John Mahan was acting within the scope of his authority.

(6) Because, the circuit judge having ruled on the trial and in his charge to the jury that it was incumbent on the defendant to prove, outside of the written order for the purchase, that the plaintiff, Robert Buist Company, had agreed to pay the freight, and that it was incumbent on the defendant not only to prove that John Mahan was the agent of the plaintiff, but also that he was acting within the scope of his authority, and the jury disregarding this instruction, having found a verdict against the plaintiff without such proof, the circuit judge, it is submitted, erred as a matter of law in refusing a new trial.

(7) Because the circuit judge in his order refusing a new trial erred in holding that the testimony was sufficient to support the verdict, when there was no testimony at all that the plaintiff agreed to pay freight, and no competent testimony whatever to show that John Mahan had authority to bind the plaintiff to pay the freight. The whole testimony in the case shows that John Mahan was merely a soliciting agent for the plaintiff, without authority to make a binding contract, and such was his own testimony.

(8) Because the written order for the purchase of the potatoes was sent up by the defendant through the mail to plaintiff at Philadelphia for acceptance or rejection, wherein was made no mention of freight charges for transportation; and the defendant having failed to offer, on the trial below, any legal or competent testimony, oral or written, to show that plaintiff or any authorized agent had ever agreed to pay freight charges on the shipment from Philadelphia to Lancaster, S. C.; and these facts having been brought to the notice of the circuit judge when the motion for a new trial was made before him, he, it is respectfully submitted, erred as a matter of law in refusing the motion for a new trial.

(9) Because the written order of the defendant for the purchase of the potatoes raised the presumption of law that the defendant was to take them at the invoice price and pay for their shipment to Lancaster, unless there was some oral or further agreement between plaintiff or some authorized agent and the defendant to the effect that plaintiff would pay the freight charges; and no legal or competent testimony, parol or written, of any such agreement having been offered in evidence on the trial, the circuit judge erred in not considering this point and in refusing a new trial.

(10) Because the circuit judge erred in not following the ruling made by the Supreme Court in this case. Robert Buist Co. v. Lancaster Mercantile Co., 68 S.C. 523, 47 S.E. 978. The Supreme Court held 'that it was competent for the defendant as purchaser to rebut the presumption that he was to pay the freight, and to show by parol testimony that the plaintiff agreed to do so'; and, the circuit judge reviewing the minutes of the trial after the verdict and seeing that no competent parol testimony had been offered at the trial to show that plaintiff had agreed to pay the freight, it is submitted that he erred in refusing the motion for a new trial.

(11) Because, the circuit judge having ruled and instructed the jury that the onus of rebutting the presumption raised by the written order or contract for the purchase rested on the defendant to show by positive testimony that the plaintiff had agreed to pay the freight on the shipment, and it having been made to appear when the motion for a new trial was made that no such testimony had been offered, the circuit judge erred in refusing to grant a new trial.

(12) Because there was no testimony offered to show that plaintiff had authorized John Mahan to make an agreement to deliver the potatoes in Lancaster free of charge, and it was not competent for defendant to prove by the declarations of Mahan that he had such authority. The relation between John Mahan and plaintiff was that Mahan was only a soliciting agent of plaintiff, without authority to make a binding contract, as the provisions of the written order for the purchase of the goods and plaintiff's acceptance of the same and the testimony of John Mahan clearly show. And it is submitted that the circuit judge erred in allowing the defendant to attempt to prove by the witnesses Lazenby, Brown, and Carnes such alleged agency by the declarations of John Mahan, and the plaintiff should have a new trial.

(14) Because the circuit judge erred in allowing L. C. Lazenby, the general manager of the defendant, and other witnesses in their testimony to disown the very order for the purchase of the goods which the defendant had admitted to have made and sent up, as this was an established fact, not to be contradicted.

(15) Because there was not a particle of legal or competent testimony to show that Robert Buist Company, plaintiff, ever agreed to pay the freight charges on the potatoes, and the circuit judge would have been justified in directing a verdict at least for the price of the 50 barrels of potatoes and the direct freight on the whole shipment, and he erred in refusing a new trial.

(16) Because

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