Sumter Elec. Rewinding Co. v. Aiken County S. C. Clays, Inc., 17214

• Decision Date: 31 October 1956
• Docket Number: No. 17214,17214
• Citation: 230 S.C. 229,95 S.E.2d 259
• Parties: SUMTER ELECTRIC REWINDING COMPANY, Respondent, v. AIKEN COUNTY S. C. CLAYS, Inc., Appellant.
• Court: South Carolina Supreme Court

Page 259

95 S.E.2d 259

230 S.C. 229

SUMTER ELECTRIC REWINDING COMPANY, Respondent, v. AIKEN COUNTY S. C. CLAYS, Inc., Appellant.

No. 17214.

Supreme Court of South Carolina.

Oct. 31, 1956.

Lybrand, Simons & Smith, Aiken, for appellant.

Defour & Dufour, Aiken, for respondent.

TAYLOR, Justice.

This appeal comes from the Court of Common Pleas for Aiken County where respondent brought an action upon an open account in the sum of $1,842.26. Appellant, by way of answer, admitted the account but alleged as a defense that respondent was indebted to it in the sum of $2,500 as evidenced by its promissory note given for the purchase of a diesel powered shovel and asked for judgment in the sum of $758.06, also $1,741.94, with interest at the rate of five per cent per annum from May 29, 1952, less the amount owed on the original account of $1,842.26. Respondent in its reply alleged that the sale of the power shovel by appellant to it was never consummated, in that it was not in the condition as represented by appellant and had been rejected upon inspection. The matter was referred to the Master of Aiken County by consent of the parties, who found that respondent had sufficient opportunity to inspect and reject the property but had not done so until after he had purchased the shovel and had executed a note as payment therefor, in the amount of $1,791.44, which at that time represented the difference between the amount owed appellant by respondent and the $2,500 purchase price. Exceptions were duly taken to the Master's report and heard by the Resident Judge of the Second Circuit who held that the evidence did not show an acceptance of the shovel by respondent; that respondent had not inspected the property before the note was signed in Sumter, South Carolina; that the shovel was at the bottom of the clay pit in Aiken County and while so situated it was not practical for respondent to inspect the property because of the muddy condition of the ground and that it was understood between the parties that it was to the moved by appellant to higher ground in order that it might be inspected; that within a reasonable time after the shovel was so moved, inspection and rejection were made by respondent for the reason that the diesel motor had been represented as being suitable for use as a power unit whereas upon inspection it was disclosed that there was a large hole in the motor and the head had been weled which rendered it useless as a power unit but was scrap along with the rest of the shovel and ordered that respondent have judgment against the appellant in the sum of $1,842.26; and appellant comes to this Court upon four exceptions:

'1. That the Court erred in failing to find that the sale was consummated at the time the note was signed, the error being that the testimony shows the note was executed by way of payment of the sale price of the shovel and such sale was not conditioned upon an inspection and possible rejection by the plaintiff.

'2. That the Court erred in finding that the evidence does not show an acceptance of the shovel by the plaintiff, the error being that the only reasonable inference from the testimony is that there was such acceptance by the plaintiff.

'3. That the Court erred in finding as a fact that the inspection and rejection of the shovel by the plaintiff was made within a reasonable period of time after the transaction between the parties, the error being that the plaintiff unreasonably delayed inspecting and rejecting the same.

'4. That the Court erred in not finding that the plaintiff is estopped to set up an inspection and rejection of the shovel, the error being that the testimony shows by his conduct, plaintiff waived his right to set up inferiority of quality of the shovel and also waived all right to inspect and reject same.'

Action in this case being upon open account was clearly an action at law but was submitted to the Master by the consent of the parties. While the finding of facts as well as of law by the referee may be affirmed, modified, or reversed by the Circuit Judge upon exceptions to the referee's report, this Court has no power to review the conclusion of the Circuit Judge in a law case for the reason that jurisdiction of the Supreme Court is limited by the constitution to the correction of error at law; and it can only review findings of fact in chancery cases....