Southern Iron & Equipment Co. v. Bamberg, E. & W. Ry. Co.

• Decision Date: 10 August 1929
• Docket Number: 12711.
• Parties: SOUTHERN IRON & EQUIPMENT CO. v. BAMBERG, E. & W. RY. CO.
• Court: South Carolina Supreme Court

149 S.E. 271

151 S.C. 506

SOUTHERN IRON & EQUIPMENT CO. v. BAMBERG, E. & W. RY. CO.

No. 12711.

Supreme Court of South Carolina

August 10, 1929

Appeal from Common Pleas Circuit Court of Bamberg County; S.W. G Shipp, Judge.

Action by the Southern Iron & Equipment Company against the Bamberg Ehrhardt & Walterboro Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff's exceptions, the contract, and the exhibits, directed by the court to be reported, were as follows:

Plaintiff's Exceptions.

"The appellant respectfully submits that his honor, the circuit judge, erred, as follows:

"(1)In admitting in evidence, over the objection of the appellant the paper called 'Specifications Locomotive No. 2022,' being Exhibit 9, on the ground that the parties later entered into a written contract providing that the engine was sold in its present condition, the said contract merged all prior negotiations, and the said testimony altered and varied the terms of the said written contract of November 17, 1926.

"(2) In admitting in evidence, over the objection of the appellant, the letter of November 11, 1926, on the ground that the parties later entered into a written contract providing that the engine was sold in its present condition, and the said contract merged all prior negotiations, and the said testimony altered, varied, and contradicted the terms of the said written contract of November 17, 1926.

"(3) In admitting in evidence, over the objection of the appellant, testimony of the witness J. Frank Folk that H. M. Pratt, vice president of the plaintiff company, had stated to him that there were no patches on the boiler; the said testimony altering, varying, and contradicting the terms of the written contract of November 17, 1926, which provided that the engine was sold in its present condition.

"(4) In admitting in evidence, over the objection of the appellant, testimony of the witness J. Frank Folk that Mr. Kern, president of the plaintiff company, had stated to him that there were no boiler patches on the engine; the said testimony altering, varying, and contradicting the terms of the written contract of November 17, 1926, which provided that the engine was sold in its present condition.

"(5) In admitting in evidence, over the objection of the appellant, testimony of the witness J. Frank Folk that H. M. Pratt, vice president of the plaintiff company, had stated to him that the engine contained two new cylinders; the said testimony altering, varying, and contradicting the terms of the written contract of November 17, 1926, which provided that the engine was sold in its present condition.

"(6) In admitting in evidence, over the objection of the appellant, testimony of the witness C. L. Sikes, that Mr. Kern, president of the plaintiff company, had stated that the boiler contained no patches; the said testimony altering, varying, and contradicting the terms of the written contract of November 17, 1926, which provided that the engine was sold in its present condition.

"(7) In refusing the motion of the appellant to strike out all of the testimony as to any representations as to the condition or quality of the locomotive, on the ground that the same varies, adds to, and contradicts the terms of the written contract of November 17, 1926.

"(8) In refusing the motion of the appellant to strike out all of the testimony as to any representations as to the condition or quality of the locomotive, on the ground that the contract expressly stated that the engine was sold in its present condition, and any other testimony as to any warranty of the condition or quality of the engine is inadmissible.

"(9) In refusing to direct a verdict in favor of the plaintiff, on the ground that, since the written contract of November 17, 1926, provides that the engine was sold in its present condition, as a matter of law defendant had no right to rely upon any oral representations that might have been made to him.

"(10) In refusing to direct a verdict in favor of the plaintiff, on the ground that, since the written contract provides that the engine was sold in its present condition, the defendant was grossly negligent in not paying attention to the terms of the contract, and on account of such gross negligence is precluded from a recovery.

"(11) In refusing to direct a verdict in favor of the plaintiff, on the ground that the defendant inspected the locomotive before making the contract, and should not be allowed to say that he was misled by any representation.

"(12) In refusing to direct a verdict in favor of the plaintiff, on the ground that the evidence shows that the defendant accepted and used the engine after the alleged fraudulent representation, and that such alleged fraud is waived.

"(13) In refusing to direct a verdict in favor of the plaintiff, on the ground that the evidence shows that the defendant accepted and used the engine after the alleged fraudulent representation was known to it, and that it is thereby as a matter of law estopped from claiming fraud.

"(14) In refusing to direct a verdict in favor of the plaintiff, on the ground that the defendant is not entitled to rescind this contract for fraud or otherwise, for the reason that it has not made an unconditional tender of the locomotive back to the plaintiff, and has not offered to pay to the plaintiff for the intermediate use of the locomotive.

"(15) In charging the jury as follows: 'If the defendant undertook to rescind the contract on the ground of fraud, and if he has proven that, it would be his duty to tender the property back to the seller, and he would have a right if he had paid out any money to attach conditions to that that they should restore him to his former position and return the money'--the error being that the tender of the engine back to plaintiff, which the law requires, should have been unconditional, and the tender which attached the condition of plaintiff returning the money rendered the tender altogether invalid and of no effect.

"(16) In charging the jury as follows: 'Where a person rescinds the contract on the ground of total failure of consideration, it is his duty to tender the property back as I have charged you on the question of fraud'-- the error being that the tender back of the engine to the plaintiff, which the law requires, should have been unconditional, and the attached condition that plaintiff must return the money paid in rendered the attempted tender invalid and of no effect." Contract.

"State of South Carolina, #2402

"Bamberg County.

"This agreement made and entered into this 17th day of November, 1926, between Southern Iron & Equipment Company, of Atlanta, Georgia, a corporation under the laws of Georgia, hereinafter called the vendor, and Bamberg, Ehrhardt & Walterboro Railway Company of Bamberg, South Carolina, hereinafter called the vendee,

"Witnesseth:

"That the vendor has this day delivered to and hereby agrees to sell to the vendee, for the consideration or sum of Six Thousand and 00/100 Dollars, upon terms and conditions hereinafter set forth, the following described personal property, to-wit:

"One (1) 14"'x20"' Standard Gauge, 10-Wheel type, Glover Locomotive, Southern Iron & Equipment Company's Shop No. 2022; bearing lease or ownership plates "Southern Iron & Equipment Company, Atlanta, Georgia, Owner,' said plates to remain on locomotive until fully paid for.

"The vendee agrees to and does receive said property, and to pay the vendor therefor at vendor's place of business in Atlanta, Georgia, the said purchase price on the following terms: Two Thousand and 00/100 Dollars cash herewith, the balance being evidenced by Seven notes given contemporaneously herewith aggregating Four Thousand and 00/100 Dollars and payable as follows:

Note No. Maturity Date. Amount.

1 Dec 22, 1926 $574.00

2 Jan. 22, 1927 571.00

3 Feb. 22, 1927 571.00

4 Mar. 22, 1922 571.00

5 Apr. 22, 1927 571.00

6 May 22, 1927 571.00

7 June 22, 1927 571.00

"Said notes bear interest at Six per cent. per annum, from November 22, 1926, and provide for all costs of collection, including ten per cent. (10%) attorney's fees if placed in an attorney's hands for collection. Said notes further provide that if any one of same shall become due and remain unpaid for thirty days, when the vendor or holder shall have the right to declare them all due.

"It is agreed that the title to said described personal property shall remain and be vested in said Southern Iron & Equipment Company, the vendor, and said vendor shall have the complete rights and lien to and on said property as above described, legally established and recognized by law, as belonging to a vendor under contract of purchase and sale such as this. Said title to said property is to be and remain vested in said vendor, as hereinbefore agreed, until all of said purchase money notes, with stipulated interest, are paid in full.

"It is further agreed that said personal property is accepted in its present condition, without recourse on said vendor for any claim for repairs, or otherwise, and is agreed that said property shall be kept in good order and repair; that the vendee shall be responsible for all damages and injuries done to said property and for its destruction and loss, and shall not be entitled to abate therefor the aggregate price, with full interest thereon. It is still further agreed that said property shall not be taken out of the State of South Carolina or the County of Bamberg without vendor's written consent endorsed hereon but is to remain in said State and County subject to this contract, and until this contract is carried out and fully performed.

"And it is agreed that upon failure to...