St. Charles Mercantile Co. v. Armour & Co.

• Decision Date: 06 May 1930
• Docket Number: 12912.
• Citation: 153 S.E. 473,156 S.C. 397
• Parties: ST. CHARLES MERCANTILE CO. v. ARMOUR & CO.
• Court: South Carolina Supreme Court

153 S.E. 473

156 S.C. 397

ST. CHARLES MERCANTILE CO. v. ARMOUR & CO.

No. 12912.

Supreme Court of South Carolina

May 6, 1930

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by the St. Charles Mercantile Company against Armour & Co. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thos H. Moffatt, Fred D. Townsend, and John W. Crews, all of Columbia, for appellant.

C. T Graydon, of Columbia, Mendel L. Smith, of Camden, and R. E. Dennis, of Bishopville, for respondent.

BLEASE J.

This case seems to be on rather a new line --presenting, perhaps, some new questions-- and, accordingly, it is of more than passing interest. But, as we have often found in that wonderful science of the law, new questions arising as to rights between persons, and the remedies for wrongs upon those rights, are answered largely by applying properly to them old legal principles. Mr. Justice Gage often said, in his characteristic way, "The facts breed the law." We turn, therefore, first to the facts in the case, and, because the exceptions of the appellant require it, we place the plaintiff's color upon them.

St. Charles Mercantile Company, the respondent, was a corporation engaged in the business of general merchandise in Lee county. The appellant, Armour & Co., is also a corporation and engaged in the business of packing and selling meats, etc. The respondent was a customer of the appellant. On May 8, 1926, respondent, through one of its officers, Mathias, gave the traveling representative of the appellant an order for a shipment of "D. S. Butts" at the price of $27.04; and on the 22d of the same month another order for the same kind of meat at the price of $27.95. The orders were delivered. The sales were made on credit terms. Moore, a representative of the appellant, some time about August, on a call to the respondent's place of business, took up with the respondent the payment of the account. Mathias, for the respondent, and Moore agreed to a settlement by which the respondent was to give, and Moore was to accept, a check of the respondent postdated to the first day of September, 1926, for $54.99, the amount of the account. Mathias was certain that this occurred either on the 2d or 3d day of August, and was positive it did not happen on August 1st, because that day was Sunday. The check was delivered to Moore. It is in the usual form of a bank check. It appears from a sight of the instrument that it was originally dated September 1st and thereafter "Sept." was changed to "Aug." No one authorized for the respondent a change in the date of the check. About August 9, 1926, the appellant deposited the check in the National State Bank at Columbia for collection, which bank forwarded it to the First Merchants National Bank at Richmond, that bank in turn transmitted it to the Federal Reserve Bank at Richmond, and the bank last named sent the check to the drawee bank at Bishopville for payment, the check being received at the Bishopville bank about August 11, 1926. The alteration in the date of the check was made from the time of the delivery of the instrument to the representative of the appellant by Mathias and its presentation to the Bishopville bank. The check was returned by the Bishopville bank to the Federal Reserve Bank with the notation "N. S. F.," meaning "not sufficient funds," because respondent at that time did not have on deposit with the bank necessary funds to take up the check. On August 14, 1926, the branch office of the appellant at Columbia sent the check, direct by mail, in the same altered condition, to the Bishopville bank for collection. The letter to the bank accompanying the check said: "Herewith for collection check August 1st $54.99 signed St. Charles Mercantile Co. Please let us have Cashier's Check covering, less usual exchange, and oblige." It was signed "Armour & Company," and from the stenographer's notation appears to have been dictated by one "B. H." The letter as first written on the typewriter had "September" where August appears in the copy we have made. The word "August" was written above "September" in ink. On the same date, August 14, 1926, the appellant mailed to the respondent at St. Charles what purported to be an exact carbon copy of the letter the appellant had sent on that day to the Bishopville bank. In this carbon copy, however, the word "September" had not been changed to read "August." The difference in the letter sent the bank and the carbon copy sent the respondent amounted to this: The bank was notified that it was being sent respondent's check dated "August 1st," while the respondent had notice that its check dated "September 1st" was being sent to the bank. Upon receipt of the check the second time, and the letter referred to, the bank, on August 17th, notified the respondent that it held for collection a check of the respondent to the appellant for $54.99. Mathias, for the respondent, was at the bank soon after August 17th, looked at the check which was there for collection, informed the bank officials that the check was not to be paid until September 1st, that its date had been altered and declined to make payment at that time. On August 30th, the respondent deposited in the bank more than a sufficient amount to take care of the check, payment of it was made, and the bank remitted the proceeds to the appellant.

The facts developed at the trial, looking upon them favorably to the respondent's contentions, were brought out in support of the allegations of its complaint. In addition to reciting substantially the facts referred to, that pleading alleged that the appellant, "through its agents and servants, negligently, willfully, recklessly and wantonly changed the date upon said check from September 1, 1926, to August 1, 1926 and falsely gave the check the appearance of being uttered and delivered as and for the 1st of August instead of September 1, 1926, its true date."

The complaint further charged, "that as a result of the negligent reckless, willful and wanton acts of the defendant, its agents and servants, in changing said date upon said check, in sending out said different and changed notices, in presenting said check before the same was due and in having the same turned down and marked 'not sufficient funds,' tended to injure and impair the credit of the plaintiff herein, to hurt and damage the reputation of the plaintiff for honesty and fair dealing, to lower the standard of credit of the plaintiff for paying its debts and to have an item turned down and refused payment upon by said negligent, reckless, willful and wanton acts and thereby injuring and damaging the plaintiff in its reputation and business standing, all to its damage in the sum of three thousand dollars."

The appellant set up three defenses. In the first of these, it alleged that the goods were sold on credit, and that the check in payment of the account ""was delivered sometime on or prior to the first day of August, 1926," and it denied generally the other material allegations of the complaint. In its second defense, it alleged that the check, dated August 1, 1926, was given for the past due account of the respondent to the appellant. Further, that it had made diligent investigation as to the matters in connection with the check, and had been unable to determine if the date thereof was changed, or if it was changed, if it was changed in appellants' office; that if the change in the date was made in its office, it was done through error. In its third defense, the appellant reiterated that if the change in the date of the check was made in its office, it was done without the authority of any one in charge of the office, and that the person who made the change, in doing so, acted beyond the scope of his or her authority.

The appellant offered no evidence.

On the part of the appellant, there was first a motion for a nonsuit, and afterward one for a directed verdict, the grounds of those being mentioned later. Both motions were refused by Honorable W. H. Townsend, circuit judge, presiding in the court of common pleas for Richland county, where the trial was had.

The case was submitted to the jury, who returned a verdict in favor of the respondent for $2,000. The appellant's motion for a new trial was refused.

The exceptions, twelve in number, containing numerous subdivisions of specified error, do not raise near so many questions. We shall endeavor to cover what we conceive to be the questions necessary for determination, without passing upon the several exceptions seriatim.

Following very much the grouping of the questions involved, as appellant has stated them, we take up first the exceptions imputing error to certain portions of the charge. The instructions complained of were as follows: (a) "If the defendant negligently, recklessly, wantonly or willfully caused the check to be prematurely presented for payment and dishonored, such conduct would be an actionable wrong and would be presumed to have resulted in injuring the credit and commercial standing of the plaintiff."

(b) "If the defendant negligently caused a post-dated check given it by the plaintiff to be prematurely presented and dishonored by its payment being refused for insufficient funds in Bank, the law would presume in the absence of evidence to the contrary that the plaintiff was thereby caused to suffer substantial damage, temperate in amount on account of injury to its credit."

(c) "Any willful interference with the business of another if followed by damage is an actionable wrong; and if the defendant willfully caused the premature presentment of a post-dated check drawn by plaintiff on a bank, which resulted in the dishonor of the check, because of insufficient funds then being in the...