Stevenson v. B. B. Kirkland Seed Co.

• Citation: 180 S.E. 197,176 S.C. 345
• Decision Date: 27 May 1935
• Docket Number: 14073.
• Parties: STEVENSON v. B. B. KIRKLAND SEED CO.
• Court: South Carolina Supreme Court

180 S.E. 197

176 S.C. 345

STEVENSON v. B. B. KIRKLAND SEED CO.

No. 14073.

Supreme Court of South Carolina

May 27, 1935

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

Action by Edna S. Stevenson against the B. B. Kirkland Seed Company. Judgment for plaintiff, and defendant appeals.

Affirmed and order settling transcript of record modified.

Melton & Belser, of Columbia, for appellant.

Elliott McLain, Wardlaw & Elliott, of Columbia, for respondent.

PHILIP H. STOLL, Acting Associate Justice.

The complaint in this action alleged in substance that Edna S Stevenson, the respondent herein, was engaged in the maintenance and operation of the Fairwold Dairy Farm and that on said farm she had a herd of approximately 129 animals; that on or about September 20, 1933, she bought from the B. B. Kirkland Seed Company, the appellant herein, 175 bushels of rye seed, which rye seed the appellant represented to be Abruzzi rye; that respondent particularly specified Abruzzi rye to appellant as the kind which she desired to purchase for the reason that the growth development of that variety of rye produces a continuous upright growth which animals can continually graze during the growing season and which is highly recommended by experts and dairymen, and is a well-known food for dairy herds and greatly increases the milk production; that respondent bought the said rye seed from appellant upon the express representation and warranty made by the appellant that the seed so sold and delivered was genuine Abruzzi rye, and paid the appellant on the day the seed was delivered the quoted price for genuine Abruzzi rye seed, which was $1.55 per bushel or the total sum of $271.25; that respondent prepared her land in the proper season for planting Abruzzi rye, made the necessary preparation in a thoroughly farmerlike manner, and planted approximately 115 acres of land with the seed purchased from the appellant, which was sufficient to pasture her dairy herd for approximately six months had the rye seed so purchased been Abruzzi rye as represented to her by appellant; that after the planted rye had obtained sufficient growth to distinguish its variety, it developed that it was not Abruzzi rye, but was another variety of rye of a flat spreading growth and wholly unsuitable and useless for grazing and pasturing her dairy herd; that as a result thereof her land was wasted for the season for grazing purposes and she was put to great expense to buy concentrated food for dairy herd, and her milk production was decreased approximately twenty gallons per day.

The complaint further alleged that the appellant sold respondent the said 175 bushels of rye seed under an express warranty that same was genuine Abruzzi rye, that said warranty was breached by appellant, and the breach thereof accompanied by acts of fraud, thereby damaging respondent in the sum of $10,000.

The answer of appellant contained first a general denial; second, a plea that the rye was sold under a nonwarranty or disclaimer clause by which the appellant was relieved from any responsibility for the crop produced; and, thirdly, a counterclaim in the sum of $410 on account of a past-due account alleged to be due and owing by respondent to the appellant.

To appellant's counterclaim the respondent filed a general denial.

The case was tried before Judge W. H. Townsend and a jury in the court of common pleas for Richland county on May 23, 1934. At the opening of the trial, upon motion of the appellant that the respondent be required to elect the cause of action upon which she would go to trial, the appellant elected to treat the complaint as stating a cause of action for fraudulent breach of contract accompanied by a fraudulent act.

During the trial the respondent sought to prove her case by offering evidence as to the kind of crop which was produced from the seed secured by her from the appellant. The appellant objected to this evidence, but objections were overruled.

At the conclusion of respondent's evidence, the appellant moved for a nonsuit upon the ground that the evidence offered failed to sustain the allegations of the complaint, which motion was overruled. When all the evidence was in, the appellant made a motion for a directed verdict upon similar grounds, which motion was likewise overruled. Respondent's motion for a directed verdict as to appellant's counterclaim was granted. The jury returned a verdict for respondent on the complaint in the sum of $1,090.45, actual damages.

Thereafter, the appellant made a motion for a new trial upon the ground generally that the verdict was contrary to the law and evidence, and also that one of the jurors was not qualified. This motion was also refused by the trial judge.

The case is now before this court upon exceptions which challenge particularly the rulings of the trial court in the admission of evidence, in refusing appellant's motion for a nonsuit, and for a directed verdict and for a new trial, and in granting respondent's motion for a directed verdict of appellant's counterclaim.

For a proper understanding of the case, certain pertinent facts must be stated. Mrs. Edna S. Stevenson, the respondent, was lessee of Fairwold Dairy Farms under a written lease bearing date September 18, 1933. The rye seed, around which this action is centered, was bought by her from the B. B. Kirkland Seed Company on September 22, 1933, and on September 27, 1933, Mrs. Stevenson gave her check for $271.25 in payment for same. When Mrs. Stevenson bought from appellant, she stated that she wanted Abruzzi rye seed and the seed sold her was represented by appellant to be Abruzzi rye, and the invoice of the sale stipulated that it was Abruzzi rye. The invoice contained a nonwarranty clause to the effect that no warranty, express or implied, was given as to description, quality, productiveness, or any other matter of any seeds, bulbs, or plants by the seller, and that it would not be in any way responsible for the crop, and if the goods were not acceptable to purchaser on such terms, goods were to be returned at once. Abruzzi rye is a distinct variety and is especially adapted to the climate of this state and is the most suitable of all varieties for grazing cattle. Prior to the taking over of Fairwold Dairy Farms by respondent as lessee, said dairy farm was operated by L. B. Stevenson, respondent's husband.

The appellant states the questions raised by its exceptions to be as follows:

"1. That the evidence conclusively showed that the appellant had bought and sold the rye seed believing the same to be Abruzzi rye seed, and that the sale was made under a non-warranty clause and custom absolving the seller from responsibility for the crop produced, and hence the motion for a non-suit and for a directed verdict should have been granted.

2. That the Court should have ruled out the respondent's evidence as to the representations alleged to have been made by appellant as to the place where the rye seed were bought and grown since no such allegation was contained in the complaint.

3. That the Court misstated the issue by saying that the sole issue was whether the rye was abruzzi rye since the case really turned upon the belief of the respondent.

4. That the Court should have charged the jury that it was impossible to hold the appellant liable by opinion evidence as to the variety of the rye produced from the seed sold.

5. That the motion for a new trial should have been granted because the verdict was contrary to the law and the evidence.

6. That the motion for a new trial should have been granted because one of the jurors was disqualified.

7. That the Court erred in granting a directed verdict in favor of the respondent on the appellant's counterclaim on the admitted indebtedness of Fairwold Dairy.

8. That the Court erred in settling the transcript of record in requiring the printing of the entire stenographer's report of the proceedings."

To properly answer these questions, it is necessary to first determine what cause of action was stated in respondent's complaint. At the opening of the trial, the respondent elected, upon motion of appellant requiring an election, to treat the complaint as stating a cause of action for fraudulent breach of contract accompanied by a fraudulent act. In the case of Mauldin et al. v. Milford, 127 S.C. 508, 121 S.E. 547, 552, Justice Marion, speaking for the Court and citing Randolph & Co. v. Walker, 78 S.C. 157, 59 S.E. 856, said: "Where the complaint contains allegations appropriate to an action upon contract and also to an action in tort, and such allegations are not separately stated as distinct causes of action, certainly, in the absence of an election by plaintiff 'every intendment is in favor of regarding the action ex contractu." D' Should there be a doubt as to what cause of action the complaint stated, such doubt was eliminated when the respondent elected to proceed to trial on an action ex contractu. The rule in this state is well settled that in an action for breach of contract actual damages may be recovered to the extent of such damage as naturally, directly, and proximately result therefrom, and that where the breach of the contract is accompanied by a fraudulent act, then punitive as well as actual damages may be recovered. Sitton v. MacDonald, 25 S.C. 68, 60 Am. Rep. 484; Welborn v. Dixon, 70 S.C. 108, 49 S.E. 232, 3 Ann. Cas. 407; Holland v. Herald-Journal Co., 166 S.C. 454, 165 S.E. 203, 84 A. L. R. 1336.

The case was properly tried as an action ex contractu, and the evidence discloses that it related primarily to whether or not there was a warranty in the sales contract and if same was breached by the seller. A warranty is a statement or representation...