Robert Buist Co. v. Lancaster Mercantile Co.

• Decision Date: 20 April 1904
• Citation: 47 S.E. 978,68 S.C. 523
• Parties: ROBERT BUIST CO. v. LANCASTER MERCANTILE CO.
• Court: South Carolina Supreme Court

47 S.E. 978

68 S.C. 523

ROBERT BUIST CO. v. LANCASTER MERCANTILE CO.

Supreme Court of South Carolina

April 20, 1904

Appeal from Common Pleas Circuit Court of Lancaster County Dantzler, Judge.

Action by the Robert Buist Company against the Lancaster Mercantile Company. From judgment for plaintiff, it appeals. Reversed.

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

POPE C.J.

The Robert Buist Company, of Philadelphia, Pa., entered into a contract with the Lancaster Mercantile Company, a corporation located at Lancaster, S. C., of which the following is a copy:

"The consolidated order, marked 'A,' above reads as follows:

'John Mahan. Order No. 192. Lancaster, Oct. 24, 1900. Robert Buist Co., Philadelphia, Pa. Order X sheet.

Onion sets: Bbls. Price per bush.

Yellow or red .............. 5 ................. 2 25

White or silver skin ....... 3 ................. 2 75

Seed potatoes: Bbls. Price.

Houlton Maine Rose ......... 50 ................ 2 65

Bliss Triumph .............. 40 ................ 2 75

Breeses Peerless ........... 25 ................ 2 65

Early Goodrich ............. 10 ................ 2 65

One bu red val. beans, at 3.40.

'Signature, Lancaster Mercantile Co., Lancaster, S. C.

Ship Feb. 1st.'

' This order is absolute and not subject to countermand, but subject to any decline occurring on eastern grown stock to date of shipment.' I had to cut to get order. Confirm same if accepted."

The letter marked "B" reads as follows, to wit:

"Philadelphia, Pa., Nov. 2d, 1900. Lancaster Mercantile Co., Lancaster, S. C.--Gentlemen: We are in receipt of your valued order through our Mr. Mahan, which we accept, and will forward at the proper time as agreed. Yours very truly Robert Buist Co."

Differences sprang up between the parties to the contract, which mainly related to the question as to the payment of freight from Philadelphia, Pa., to Lancaster, S. C., on the merchandise which was embraced in the contract. It so happened that 50 barrels of the seed Irish potatoes, under the contract, were delivered, and when the check for $97.40, which was the actual cost of the potatoes themselves, was sent to the Robert Buist Company, they returned same because the Robert Buist Company demanded that the Lancaster Mercantile Company should pay $36, which was the freight on the said 50 barrels of potatoes. It may be said that this was the beginning of their differences. And when the 75 barrels of seed Irish potatoes reached Lancaster, S. C., the Lancaster Mercantile Company refused to accept the same unless it was understood that they should pay no freight charges thereon. Whereupon the Robert Buist Company telegraphed them that they would order the 75 barrels reshipped to Philadelphia, but would hold the Lancaster Mercantile Company responsible for freight both ways, and expenses connected. Accordingly the 75 barrels were reshipped. Although the Robert Buist Company never accepted the check for $97.40, yet both parties admit that sum to be due. The Robert Buist Company, as plaintiff, brought this action in the court of common pleas for Lancaster against the Lancaster Mercantile Company, as defendant, to recover the sum of $241.40, which sum embraced $97.40, admitted by both sides, and also $36 freight on the first 50 barrels, and also $108 freight both ways on the 75 barrels. Defendant denied all liability, except for the $97.40.

At the trial, defendant sought to show that, while no reference is made in the contract as to freight, it was agreed at the time of the contract that the merchandise should be delivered at Lancaster, S. C., without any charge for freight against the defendant. Steady...