Sells Lumber & Mfg. Co. v. Carr Lumber Co.

• Decision Date: 17 March 1936
• Docket Number: 14257.
• Citation: 184 S.E. 674,179 S.C. 407
• Parties: SELLS LUMBER & MANUFACTURING CO. v. CARR LUMBER CO.
• Court: South Carolina Supreme Court

184 S.E. 674

179 S.C. 407

SELLS LUMBER & MANUFACTURING CO. v. CARR LUMBER CO.

No. 14257.

Supreme Court of South Carolina

March 17, 1936

Appeal from Common Pleas Circuit Court of Greenville County; G Dewey Oxner, Judge.

Action by the Sells Lumber & Manufacturing Company, a corporation against the Carr Lumber Company, a corporation. Judgment for defendant, and plaintiff appeals.

Affirmed.

W. B McGowan, of Greenville, for appellant.

Mann Plyler & Arnold, of Greenville, and W. E. Breese, of Brevard, N. C., for respondent.

CARTER Justice.

This action by Sells Lumber & Manufacturing Company, a corporation, as plaintiff, against Carr Lumber Company, a corporation, defendant, was commenced in the court of common pleas for Greenville county, April 1, 1932, and is for the recovery of the sum of $645.60 for a carload of lumber. In the agreed statement of counsel for the litigating parties the facts and issues necessary for an understanding of the case are set forth as follows: "The plaintiff seeks to hold the Carr Lumber Company of Pisgah Forest, North Carolina, a North Carolina corporation, for the sales price of a car load of lumber sold and delivered to the Carr Lumber Company at Greenville, S. C., operated by C. G. Jordan, upon the theory of agency by estoppel. The complaint alleges that the defendant company of North Carolina for many years prior to the transaction in question allowed and permitted C. G. Jordan, of Greenville, S. C., to do business under the name of the Carr Lumber Company, the name of the defendant company; to hold himself out under the name of the Carr Lumber Company as the fully accredited agent and representative of the defendant corporation of North Carolina; that the defendant corporation of Carolina was a company of financial responsibility well known throughout the Southeast; and that the plaintiff acting upon the appearances was misled and changed its position to its detriment by selling and delivering to the Carr Lumber Company, of Greenville, S. C., a car load of lumber at the instance and request of said company, the plaintiff alleging that it was misled in the belief that the Carr Lumber Company of Greenville, S. C., was the fully accredited agent of the defendant, Carr Lumber Company of North Carolina, and that the two concerns were one and the same. The defendant, Carr Lumber Company of Pisgah Forest, North Carolina, denies that the Carr Lumber Company of Greenville, S. C., was its agent, and denies that it had authorized or permitted C. G. Jordan, trading under the name of Carr Lumber Company of Greenville, S. C., to do business under its name or to hold itself out as its agents; the defendant company of North Carolina alleges that the only business it had with C. G. Jordan of the Carr Lumber Company of Greenville, S. C., was that C. G. Jordan of the Carr Lumber Company of Greenville, S. C., handled the products of the defendant company on a consignment basis."

The case was tried in said court before his honor, Judge G. Dewey Oxner, and a jury, at the May, 1934, term, resulting in a verdict for the defendant. The plaintiff's motion for a new trial being refused, upon due notice the plaintiff appealed to this court from the entry of judgment on the verdict, upon exceptions which will hereinafter be considered.

Under the first exception the appellant imputes error to the trial judge in confining and restricting the plaintiff's testimony in certain particulars. This exception reads as follows: "The presiding Judge erred in confining and restricting the plaintiff's testimony to only such instances of C. G. Jordan under the name of the Carr Lumber Company of Greenville, S. C., holding himself out as the agent of the defendant Carr Lumber Company of North Carolina as were actually known of by the company of North Carolina and known of and relied on by the plaintiff in making the sale, the error being that all the circumstances and instances of holding out are competent and admissible on the question of agency by estoppel to establish the notoriety of the holding out from which the jury may or may not conclude that the defendant company of North Carolina in the exercise of reasonable diligence could and should have discovered and known of the fact that the Carr Lumber Company of Greenville, S. C., was holding itself out to the public as the agent of the Carr Lumber Company of North Carolina and doing business under its name."

A reading of the testimony convinces us that this exception is not well taken. As we view the record, the trial judge did not confine the testimony to such instances of C. G. Jordan, under the name of Carr Lumber Company, of Greenville, S. C., holding himself out as the agent of the defendant, Carr Lumber Company of North Carolina, as were actually known of by the company of North Carolina and known of and relied upon by the plaintiff in making the sale; but his honor permitted the plaintiff to introduce testimony tending to show facts and instances contended for by the plaintiff-appellant, notwithstanding that it was not shown that such facts and instances were known to the plaintiff or the defendant at the time in question. By reference to the testimony of the witness, A. W. Allison, who testified for and on behalf of the plaintiff at the trial of the case, it will be seen that the trial judge ruled that the witness could testify as to the circumstances, although it was not shown that such facts and circumstances were brought home to the parties involved and relied upon by them. In this connection his honor made the following ruling: "I think he is confined, as I said as to the other witness, to state the circumstances, he can state the circumstances there was to the name in the telephone directory and name on the warehouse and so forth. I am going to admit the circumstances and so forth, that is all."

In our opinion the appellant was not prejudiced by this ruling, and we think the plaintiff, during the trial, got the benefit of all competent testimony. The exception must be overruled.

The second exception reads thus: "The presiding Judge erred in not permitting the witness Allison to testify that C. G. Jordan under the name of the Carr Lumber Company made quotation of prices to him F. O. B. Pisgah Forest, North Carolina, the error being that such was an instance of the Carr Lumber Company of Greenville, S. C., holding itself out as the agent of the defendant company of North Carolina and doing business under its name and as such competent and admissible to establish that Carr Lumber Company of North Carolina either knew or in the exercise of reasonable diligence could have discovered the fact that the Carr Lumber Company of Greenville, S. C., was doing business under its name and holding itself out as its agent."

In our opinion the appellant was not prejudiced in the manner contended. This appears from what took place during the examination of this witness, which we quote, in part, as follows:

"Q. Mr. Allison, what is your business? A. Commission lumber.

Q. How long have you been in business? A. About thirty years.

Q. How long have you been in business in Greenville? A. Twelve years.

Q. Have you had occasion to observe the operation of the Carr Lumber Company in the city of Greenville? A. I have had occasion to ask them for prices on lumber from time to time.

Q. How was that concern here operated? A. Mr. Jordan had charge of the office.

Q. In what name was it operated? A. Carr Lumber Company.

Q. Did you ever see their stationery? A. No, sir.

Q. Did you ever see their warehouse here? A. Yes, sir.

Q. What name was printed on the warehouse? A. Carr Lumber Company.

Q. And on the trucks? A. I didn't see any trucks.

Q. Did you ever look them up in the telephone book? A. I think so, yes, sir.

Q. How were they listed in the telephone book? A. As I remember Carr Lumber Company.

Q. Did you ever have occasion to do business with them? A. I asked them for prices on a number of occasions.

Q. How were their prices quoted? A. I asked for particular prices on certain grades of material.

Q. How were they quoted, now? A. Mr. Jordan quoted them.

Q. From where? A. Come from Carr Lumber Company at Pisgah Forest.

By Mr. Plyler: If your honor please, let's have the writing on that. He said they were quoted that way. Are those oral quotations? A. Yes, sir.

Q. Where did you get them from? A. Mr. Jordan.

So, we object to that answer.

The Court: It is a-is it not a conversation which this witness had with Mr. Jordan?

By Mr. Plyler: Yes, sir, but he-

The Court: Mr. McGowan, I don't think that amounts to declarations by Mr. Jordan.

By Mr. McGowan: It is a holding out, if your Honor please, which we propose to show by this witness that Mr. Jordan was holding out as a representative of the Carr Lumber Company. The issues are very broad on the question of agency by estoppel. Any circumstances which will show a holding out or a representation, and that is what we are proposing to show.

By Mr Plyler: There is no evidence to connect this up that Carr Lumber Company of Pisgah Forest knew anything about it or consented to it...