Soulios v. Mills Novelty Co.

• Decision Date: 09 December 1941
• Docket Number: 15339.
• Parties: SOULIOS v. MILLS NOVELTY CO.
• Court: South Carolina Supreme Court

17 S.E.2d 869

198 S.C. 355

SOULIOS v. MILLS NOVELTY CO.

No. 15339.

Supreme Court of South Carolina

December 9, 1941

[Copyrighted Material Omitted]

H H. Woodward, of Conway, and John I. Cosgrove, of Charleston for appellant.

E. S. C. Baker, of Conway, for respondent.

BONHAM Chief Justice.

This is an action to recover damages, actual and punitive, for an alleged breaking and entering of the premises of the plaintiff by the agent of the defendant, and removing therefrom a part of the plaintiff's property, and of damaging, ransacking, and destroying other of plaintiff's property.

The defense was a general denial, and the pleading of a conditional sales contract or chattel mortgage, under which defendant had sold to plaintiff an ice cream freezer; that a title retention contract was given to secure to defendant the payment of the credit part of the sales price of the freezer; that the said contract provided that upon default in the provision for the said payment, the defendant should have the right to enter upon the premises of plaintiff and repossess the said property; that plaintiff was in default in his payments, and had abandoned possession of the property and had left it in the premises he had occupied at Myrtle Beach, South Carolina; and that on or about the 10th day of December, 1938, the defendant, by its agent, peaceably entered on the premises of plaintiff at Myrtle Beach, South Carolina, and peaceably repossessed the property in dispute.

The case came on to be heard before the Honorable J. Strom Thurmond, presiding Judge, and a jury, at Conway, Horry County, at the February, 1941, term of the Court of Common Pleas, and resulted in a verdict for plaintiff in the sum of two thousand five hundred ($2,500) dollars, actual and punitive damages.

It appears from the record that the plaintiff, and an agent of the defendant, first entered into a contract for the purchase of the ice cream freezer at the agreed price of two thousand and twenty-four ($2,024) dollars, on the 16th day of May, 1938, which was signed by plaintiff and sent into the Mills Novelty Company at its place of business in Chicago, Illinois, accompanied by a check for $376 as the down payment for the machine. This contract was refused by the defendant company, and a new contract which fixed the down payment at $680, was signed by the plaintiff and, along with a check for $680, was returned to, and accepted by, the defendant.

At the conclusion of the evidence, a motion for a directed verdict in its favor was made by the defendant, on the ground that it appears by the evidence that the plaintiff was in default in his payments for the machine. The motion was overruled. His Honor did not assign his reasons for such ruling; and after the rendering of the verdict the defendant moved for a new trial on the grounds stated in the record, which motion was likewise refused.

The defendant appeals from the verdict and judgment in this case upon exceptions, thirteen in number, which make for our consideration the following questions:

Was the Court in error in refusing the motion for a directed verdict, and the motion for a new trial made after the verdict was rendered?

Was the Court in error in admitting the testimony of the plaintiff in regard to the time when the first payments under the title retention contract were fixed to begin?

Was the trial Judge in error in charging the jury upon the question of waiver by the defendant of the provisions of the contract relating to the question of default by the plaintiff?

Was the Court in error in permitting plaintiff's counsel to show a magazine to the defendant's witness, and to question him thereto, and have him read therefrom, in the presence of the jury, upon the question whether the defendant handled or sold slot machines?

Was the Circuit Judge in error in charging the jury upon the question of trespass?

Was the Judge in error in submitting to the jury the issue of damages to property not covered by the retention title contract?

The question that confronts us at the opening of the consideration of this opinion is this: Did the presiding Judge err in overruling the motion for a directed verdict, which motion was predicated upon the ground that the evidence showed that the plaintiff was in default in his payments?

It has long been the established rule of this Court that if there is a scintilla of relevant, competent testimony, pro and con of the issues involved, it is the duty of the Judge to submit the case to the jury; such is the provision of our Constitution of 1895. In the case of Turner et al. v. American Motorists Insurance Co., 176 S.C. 260, 180 S.E. 55, 56, this Court said:

"The appellant labors under the erroneous idea that the Supreme Court has overruled the pronounced principle, to wit, if there is any relevant testimony, amounting to a scintilla, it must be left to the jury to determine its force and effect. The meaning of the rule is that there must be some evidence arising out of the testimony which elucidates the issues of fact, and which enables the jury to form an intelligent conclusion. ***

"In the case of Taylor v. [Atlantic Coast Line] Railway Co., 78 S.C. 552, 556, 59 S.E. 641, 643, this court said: 'A scintilla of evidence is any material evidence that, if true, would tend to establish the issue in the mind of a reasonable juror.' (Italics added.)

"Whilst adhering to the scintilla rule, this court has recognized a rule supplemental to the scintilla rule, which is thus propounded in the case of National Bank v. Thomas J. Barrett, Jr., & Co., 173 S.C. 1, 174 S.E. 581, 582: 'If it be conceded that there may be deduced by a process of unusual finesse of reasoning that there is a scintilla of evidence *** nevertheless there is another rule, more founded upon common sense and reason, to the effect that when only one reasonable inference, not just one inference, but one reasonable inference, can be deduced from the evidence, it becomes a question of law for the court, and not a question of fact for the jury.'

*****

"This declaration is but to say that the scintilla of evidence upon which a case should be sent to the jury must be real, material, and pertinent and relevant evidence ***."

We think upon a consideration of the record in this case, that the Judge had no other course to pursue than to submit this case to the jury.

The cardinal issue upon which this question turns is: When did the payments of the credit portion of this contract begin? The contract is silent on that subject. The plaintiff testified that the agent with whom he contracted for the purchase of this machine told him that he would have four or five months from the date when the appellant contended that the payments were to begin, in which to begin his payments, and he states in his testimony that when he made his first contract he had sent a check for $376 as a down payment. This was refused by defendant, and he had to sign a contract for $680 down payment, and to make that payment, which he did. The plaintiff testified further that he had about $1,300 with which to begin business at Myrtle Beach, and that this unexpected payment of $680, after meeting the expenses at the beginning of his business, left him with very little money, and that with this showing the agent assured him he would have four or five months in which to begin his payments. This, of course, is denied, but the person with whom he made the contract was not presented as a witness at the trial.

We do not think it requires the citation of authority to say that the rule is that when the written instrument is silent as to an important issue thereof, parol testimony is admissible to prove it.

In the case of Willis v. Hammond, 41 S.C. 153, 19 S.E. 310, 314, this Court said: "*** It is admitted that unless the contract of 29th March, 1889, was a complete unity, and therefore did not need anything to make it plain and operative, a resort to anything legally competent to make it plain, as expressing the agreement of the parties, to such contract, is admissible. We have just seen, under the second division of this opinion, that it was not such a complete unit, in itself, and that it thereby opened the way to testimony showing the precedent arrangements of the parties to this contention. While it is a general rule that a contract in writing, complete in all its terms, draws into it all parol contracts preceding it, yet, if it fails to state the consideration, if it uses terms that need explanation to be understood and applied, or if it is only a part of a general whole, it is perfectly competent to supply all these missing qualities by testimony giving all the precedent agreements of the parties. ***"

In the case of Ashe v. Carolina & Northwestern Railway Co. et al., 65 S.C. 134, 43 S.E. 393, 394, Mr. Justice Gary, speaking for this Court, used the following language: "*** When the written evidence of the contract does not contain all the terms of the transaction between the parties, parol evidence (not contradicting or varying the writing) is admissible for the purpose of showing a contemporaneous independent agreement entered into between the parties. *** The written evidence of the contract being silent as to the time in which the money was to be paid, parol testimony was admissible to show such fact, as it did not alter, vary, or contradict the writing. ***"

Also in the case of Midland Timber Co. v. Furman et al., 111 S.C. 287, 97 S.E. 831, this Court said: "To use a simile, if a span of a bridge be missing, that circumstance is manifest on casual observation, and the conclusion is instant that the whole structure is not present. So here, if the paper writings laid down show upon their face an incompleteness, then that which makes...