Talbott v. Sandifer

• Citation: 4 S.E. 152,27 S.C. 624
• Parties: TALBOTT and others v. SANDIFER, (three cases.)
• Decision Date: 25 November 1887
• Court: South Carolina Supreme Court

4 S.E. 152

27 S.C. 624

TALBOTT and others v. SANDIFER, (three cases.)

Supreme Court of South Carolina

November 25, 1887

Appeal from common pleas, circuit court of Barnwell county; COTHRAN Judge.

These three suits, growing out of the same transaction, were tried together by the consent of the counsel engaged in them. The plaintiffs, Talbott & Sons, are manufacturers of steam-engines, boilers, etc., in the city of Richmond Virginia. In the summer of 1883 they sold and delivered to the defendant one of their steam-engines, to be delivered at Bamberg, in said county, "for the consideration of the payment of $1,800, as follows: Two hundred dollars cash in hand upon delivery of machinery; six hundred dollars in note due first November, 1883; six hundred dollars in note, due first January, 1884, and the delivery at Bamberg, S. C., of one H. P. Bigelow engine, valued at $400. Note to bear date of bill of lading, with 7 per cent. interest added. The condition of the above contract is that the legal title and right of property in and to the above-described property is to remain and be vested in Talbott & Sons, of Richmond Virginia, to take possession of the said property at any time after the maturity of said notes, or either of them; but in case the said notes are paid off, then the title of said property to vest in the said P. W. Sandifer." Suit was brought upon each of the notes separately, and for the recovery of the Bigelow engine. Defendant answered, admitting the facts of the complaint, but set up a counter-claim based on a breach of plaintiffs' contract of warranty. The court of common pleas construed the contract as a conditional sale, and held that the title had never passed from plaintiffs, and that they should have resorted to an action for damages, and not upon the written contract. A judgment of nonsuit was therefore entered up against them, and they appeal to this court.

James E. Davis, for appellants.

Skinner & Williams, for respondents.

MCIVER J.

It seems to us that the written contract entered into by the parties for the sale of the machinery should be regarded as an instrument in the nature of a mortgage, which, though void as to subsequent creditors and purchasers without notice, is good between the parties. It seems to have been so intended by the parties, and so treated by them; and inasmuch as the rights of neither subsequent creditors nor purchasers are involved, we see no reason why it should not be given effect as such. It was recorded as a mortgage, and was enforced as such, and the defendant, in the defenses set up in his answer, manifestly treats it as such, and sets up no defense based upon the idea that the contract was a conditional sale. It will be observed, too, that, by the express terms of the contract, the plaintiffs agreed to furnish to the defendant certain machinery, "for the consideration of the payment of...