Stewart v. Smith

• Citation: 135 S.E. 801
• Decision Date: 23 November 1926
• Docket Number: (No. 12106.)
• Parties: STEWART v. SMITH.
• Court: United States State Supreme Court of South Carolina

135 S.E. 801

STEWART

v.SMITH.

(No. 12106.)

Supreme Court of South Carolina.

Nov. 23, 1926.

Cothran, J., dissenting.

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

Action by Alma Stewart against Arthur Smith, doing business as the Camden Furniture Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Paragraph 7 of the complaint is as follows:

"(7) That on or about the 25th day of July, 1923, the Rudolph Wurlitzer Company of Cincinnati, Ohio, sued Arthur Smith, in business as the Camden Furniture Company, for $2,240.53. In the defendant's answer he admitted the debt, but alleged that during 1920 he had purchased from the Wurlitzer Company and paid for four automatic electrical musical instruments, which were defective and worthless, and asked that the price paid for said instruments be set oft against the amount sued for. Said claim of the Camden Furniture Company's was set off against the $2,240.50 sued for by the Rudolph Wurlitzer Company, and the jury brought in a verdict for the defendant Arthur Smith, in business as the Camden Furniture Company, in said case. The electric piano which was purchased by the plaintiff in this case from Arthur Smith, in business as the Camden Furniture Company, is one of the four instruments, above referred to set out in the answer of the Camden Furniture Company, as defective and worthless, all of which this defendant is informed and believes."

The judge's charge to the jury is as follows:

"The plaintiff in this action seeks to recover of the defendant $1,552.25, as damages for breach of an implied warranty in the sale of a mechanical piano described in the complaint. It is admitted that the defendant sold the piano to plaintiff at the price of $1,750, and that she paid $1,552.25 thereon. Because plaintiff did not pay the balance of the price promised, the defendant took back the piano under a mortgage for the purchase money and sold it at public auction for $75.

"The plaintiff claims that the piano in question was of defective material and workmanship, and was worthless and useless although she paid a full and fair price therefor, and for which the best kind of such instrument on the market could have been bought; that on discovering the defective condition of the piano she offered to rescind the trade, by returning the piano to plaintiff and asked the defendant to return the money she had paid thereon—

"Mr. De Loach: You mean defendant—instead of plaintiff—

"The Court: Yes, sir. By returning the piano to defendant and asked the defendant to return the money she had paid thereon, and defendant declined to do so, so she kept up the payments to the amount of $1,552.25 and she asks that she be now given a verdict against defendant for that amount.

"The defendant denies that the piano was defective, and says that, after crediting plaintiff with the $75 which the piano brought at the mortgage sale, plaintiff still owes defendant $352.95 on account of the trade, and he asks judgment against her for that amount.

"The burden is on the plaintiff to prove that the piano was defective, and that the defect was latent or concealed when plaintiff received the piano, and that, on discovering the defect, she acted promptly in offering to return the piano to defendant, and that defendant refused to take it back.

"An agent is one authorized by another called his principal to act for him. One dealing with an agent must inquire as to and ascertain what authority or power the agent has been given by his principal; and the principal is bound by the conduct or acts of his agent within the scope of his authority as agent. So notice to an agent is notice to the principal for whom he is then acting. In order for an offer to an agent to affect the principal, the principal must have given the agent authority to act in the matter.

"Now, where a person sells an article of personal property at a full and fair price, he impliedly warrants that the article so sold is merchantable and reasonably suited for the use intended and that the seller knows of no latent defects therein. Latent defects means such defects as are hidden. An implied warranty does not cover defects which can be discovered by ordinary prudence and caution and as to these obvious defects, which could easily be discovered by the purchaser, the buyer is held to exercise his own judgment and determine for himself whether or not the article is defective before he accepts it. Such implied warranty against hidden defects would continue until after the lapse of a reasonable time by which the buyer could by the exercise of ordinary care, prudence, and caution discover the true condition of the article in question, and no longer.

"The buyer has a reasonable time within which to inspect goods bought by him; but, if he knows of the defects, or accepts them without inspection after a reasonable time, he waives all objections to their condition. The buyer of goods would not be entitled to a rescission of a sale and to a return of his money paid for them unless he is able to, and does return or tenders or offers in good faith to return the goods to the seller in substantially the same condition as he received them, and this rule applies though a change in condition, damages, or injury to the goods was not the result of the buyer's negligence.

"If a purchaser accepts goods knowing them to be defective, he cannot thereafter obtain damages on account of such defects as were known, if any were known to him at the time he accepted them; and, if he afterwards discovers goods to be defective, upon making such discovery he must elect whether he will keep the goods notwithstanding such known defects and pay the agreed price for them, or return them to the seller and rescind the sale and get back the purchase money, but, in order to get back his purchase money, or credit for such defective articles, the purchaser must act with reasonable promptness in returning, or offering to return, such defective goods to the seller. If he should fail to so act with reasonable promptness, it would amount to a waiver of his right to claim anything on account of such defects. Waiver is a voluntary relinquishment of a known right. It is for the jury to determine from the evidence whether the piano sold by the defendant to the plaintiff, and which the plaintiff claims was defective, was defective in either workmanship or material so as to amount to a breach ofthe implied warranty under which it was sold. If it was so defective, you would have to ascertain what difference there was in its value on account of such defects. Did they render it entirely worthless or only reduce its value? As stated, it is for you, the jury, to determine from the evidence whether the piano sold came up to the implied warranty, and, if not, whether or not the plaintiff waived such defects in the piano, or the right to make a claim against the defendant on account thereof. If she once waived such right, she could not afterwards assert it against the defendant.

"If you find that the goods were defective and there were damages growing out of such defects to the plaintiff, you would next have to consider whether or not the defendant waived such defects, either by accepting the piano, knowing it to be defective, or by failing to use reasonable and ordinary care in order to ascertain its condition and whether a reasonable time had elapsed for her to discover such defects before she made any offer to return the defective goods to the seller, if she offered to return it. If the purchaser never offered to return the defective piano to the seller, then she would have no right to claim that the seller was liable to her for any damages on account of the defects in such goods; and, if the plaintiff did offer to return the goods to the seller on the grounds that they were defective, and they really were defective, it would be material for you to determine when she made such offer to return the goods. Was it within a reasonable time after she received the piano, and before a reasonable time had elapsed within which she should have discovered the condition of the piano? Because she would be bound under the law, in order to get credit for it on the grounds that it was defective, to return it to the seller before a reasonable time had elapsed to allow her an opportunity to discover the real condition of the goods and before, or immediately upon discovering their condition.

"A purchaser must act promptly in order to ascertain whether goods come up to the warranty under which they are sold—that is, with reasonable promptness—and, if she allows more than a reasonable time to elapse before using care to discover the condition of the goods, then, although she may not have discovered the condition of the goods after the lapse of such reasonable time in which to discover their condition, she would have no right to return them; but, if within a reasonable time after discovering the goods to be defective, then she would be allowed to rescind the same, if she then acted with reasonable promptness in offering to return the goods to the seller on discovering them to be defective.

"Of course, if she accepted the piano, knowing it to be defective, she would have no right afterwards to return it on account of such defects or to recover any damages on account of such defects.

"If latent defects were discovered by plaintiff after she had made part payments on the piano, she would have a right to demand that they be returned to her before she gave up the piano; or to hold the piano, and to recover any damages occasioned by the breach of warranty, measuring the damages under the rule which I will give you in this charge.

"So it is a question—the question of fact makes it necessary for you to determine whether the piano mentioned in the complaint came up to the implied warranty under which it was sold, and whether the plaintiff, as purchaser of such piano, knew of such defects, when...