Tallevast v. Herzog
| Decision Date | 10 August 1954 |
| Docket Number | No. 16903,16903 |
| Citation | 225 S.C. 563,83 S.E.2d 204 |
| Parties | TALLEVAST et al. v. HERZOG et al. |
| Court | South Carolina Supreme Court |
Epps & Hoffman, Conway, for appellants.
Suggs & McCutcheon, Conway, for respondents.
The action was commenced in the Court of Common Pleas for Horry County by service of the summons and complaint on August 10, 1950, and, in it, the plaintiffs sought judgment upon four notes, each dated January 26, 1950, and each in the principal sum of $1,250, given by the defendants as part payment for the purchase price for a mercantile business, in the City ofConway purchased by the defendants from H. W. Tallevast, P. H. Byrd and John E. Coles, Mr. Coles died after the giving of the notes and his interest was represented by Mrs. Winnie H. Coles, the duly appointed administratrix of his estate.
The complaint also sought foreclosure of a chattel mortgage given at the time of the purchase, covering the stock of goods and fixtures in the store, and securing the payment of the notes, and contained a cause of action in claim and delivery seeking the possession of the said chattels.
The defendants answered, admitting the allegations of the complaint, but set up by way of avoidance, setoff and counterclaim, charges of fraud and deceit against the plaintiffs, which the defendants alleged voided the obligations sued on, and entitled the defendants to a verdict for damages on a counterclaim. The alleged fraud being in failure to convey a Firestone store franchise.
At the end of all the testimony the trial court directed a verdict for the plaintiffs. The ground upon which the motion was granted are reflected in the questions as stated by respondents for this appeal in their brief as follows:
I. Did the defendants' evidence establish a case of actionable fraud warranting the submission of the same to the jury? (Exception 1.)
II. Did the trial court commit error in directing a verdict for plaintiffs upon the ground that defendants failed to use reasonable prudence and diligence for their own protection? (Exceptions 2 and 3.)
Cases requiring the trial court to submit questions of fact to the jury if there is a scintilla of evidence are legion in this Court and need no citation. Under such rule the issues for determination in this appeal are:
Is there a scintilla of evidence from which a reasonable inference may be drawn, (1) that plaintiffs were guilty of actionable fraud, and (2) that defendants used reasonable care, prudence and diligence for their own protection?
The plaintiffs, owners and operators of a store at Conway, caused to be inserted in a New York newspaper in October 1949, an advertisement as follows:
The defendants, residents of New Jersey, where they operated a ten cents store, read the advertisement and after some correspondence, came to Conway in December to discuss a purchased and sale. A sale was not then consummated but later they returned and entered into an agreement agreeing to pay $3,800 for the store fixtures, 100 cents on the dollar for accounts receivable ($5,962.85) and for all merchandise at wholesale cost ($13,338.18). When the agreement was reached the following receipt evidenced the transaction:
'Dated at Conway, South Carolina, this 5th day of January, 1950.
'H. W. Tallevast
'P. H. Byrd
'Doing business as Firestone Home and Auto Supplies, Inc.' (Emphasis added.)
The defendant returned to New Jersey to close out their business there and returned about three weeks later paying $14,852.37 in addition to the $1,000 referred to above in cash, and gave the plaintiffs five notes for $7,000, the first being for $2,000, and the remaining four for $1,250 each, the last four being the ones sued on in this action. The first was paid in April 1950 without contest; the four were not paid.
Pertinent portions of the bill of sale and agreement dated January 26, 1950, are here quoted:
'This Agreement made and entered into the 26th day of January, 1950, by and between H. W. Tallevast, John E. Coles, and P. H. Byrd, partners, doing business as Firestone Home and Auto Supplies and as Tallevast and Coles, parties of the first part and Irving Herzog and Rose Herzog, parties of the second part.
'* * * the parties of the first part do covenant and agree to sell and convey, transfer and deliver and set over to the parties of the second part all of the right, title and interest of the parties of the first in and to the Partnership business operated by the parties of the first part under the name and style of Firestone Home and Auto Supplies, * * * together with the good will and trade name 'Firestone Home and Auto Supplies.'
* * * All of the right, title and interest of H. W. Tallevast, J. E. Coles and P. H. Byrd, partners doing business as Firestone Home and Auto Supplies and as Tallevast and Coles in and to the partnership business and the assets of Firestone Home and Auto Supplies and Tallevast and Coles, including, but not limited to furniture, fixtures, equipment and outdoor signs, accounts receivable as of the close of business January 25, 1950, physical inventory of goods and merchandise as of the close of business on January 25, 1950, good will and the trade name 'Firestone Home and Auto Supplies.'
'* * * And the undersigned do hereby warrant that they are the owners of the above described property, and that they have the right to sell and convey the same.'
The plaintiffs...
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...234 S.C. 477, 109 S.E.2d 5 (1959); Mishoe v. General Motors Acceptance Corp., 234 S.C. 182, 107 S.E.2d 43 (1958); Tallevast v. Herzog, 225 S.C. 563, 83 S.E.2d 204 (1954); Weatherford v. Home Finance Co., 225 S.C. 313, 82 S.E.2d 196 (1954); Flowers v. Price, 190 S.C. 392, 3 S.E.2d 38 (1939).......
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...under Buckman. Plaintiffs' fraud claim is premised on state common law fraud that predates the FDCA. See, e.g., Tallevast v. Herzog, 83 S.E.2d 204, 206-07 (S.C. 1954); Jones v. Cooper, 109 S.E.2d 5, 7 (S.C. 1959). State laws traditionally prohibit fraud and deceit in advertising and marketi......
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Ward v. Liberty Life Ins. Co., 17408
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