Thomas Drug Store v. National Surety Co.

• Decision Date: 03 April 1916
• Docket Number: 9365.
• Citation: 88 S.E. 442,104 S.C. 190
• Parties: THOMAS DRUG STORE v. NATIONAL SURETY CO.
• Court: South Carolina Supreme Court

88 S.E. 442

104 S.C. 190

THOMAS DRUG STORE v. NATIONAL SURETY CO.

No. 9365.

Supreme Court of South Carolina

April 3, 1916

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Suit by the Thomas Drug Store against the National Surety Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.

Barron McKay, Frierson & Moffatt, of Columbia, for appellant.

W. H Cobb and Blackwell & Thomas, all of Columbia, for respondent.

FRASER J.

This is a suit on a bond given by the defendant to secure this contract:

"American Manufacturing Company, Chicago, Ill., Lexington, Tenn.--Gentlemen: Please reserve and ship to us at your earliest convenience, f. o. b. factory, your automobile, 16 dinner sets and advertising matter, described on this and reverse side, in payment for which we hereby hand you our eight notes for $1,800, payable to your order. Our last twelve months sales were $30,000. Our next twelve months sales are to be $50,000. If this order is not approved the notes are to be canceled and returned to us.

If 3 3/5 per cent. of our gross sales for the next twelve months does not amount to eighteen hundred ($1,800) dollars, you will pay us the deficiency at the rate of 9 cents on each dollar you fall short and send us your bond for $1,800 to cover this agreement with us.

To make this last clause binding upon you we agree to take the shipments promptly, carry out the contest plan, promptly meet all obligations entered into under this agreement, keep the automobile well displayed in our place of business, issue automobile votes for each cent purchased, and every sixty days of this contest to report to you our gross sales for one year, and promptly furnish you all information you request to enable you to assist in pushing the contest.

In consideration of the special methods set forth in your copyrighted plan and the terms and agreements herein, this order cannot be countermanded. The title to automobile to remain in vendor until fully paid. Any verbal or written agreement not embraced herein will not be recognized and is not binding on vendor.

Date for closing contest, June 1, 1913.

(Date for closing contest must be given.)

[Signed] Thomas Drug Store, Inc., Purchaser,

By O. E. Thomas., Pres."

"Witness: C. D. Arthur.

Town, Columbia; County, Richland; State, S. C.; Freight Station, Columbia; Express Office, Columbia. Salesman, E. A. Allen. Date, August 24th, 1912.

Contest to begin December 2d and end June 1st."

The contract was secured by this bond:

"Know all men by these presents that we, the American Manufacturing Company, a corporation of Lexington, Tennessee, and Chicago, Illinois, as principal, and the National Surety Company, of New York, as surety, acknowledge themselves to be held and firmly bound unto Thomas Drug Company, a corporation of Columbia, South Carolina, in the penal sum of eighteen hundred and no/100 ($1,800) dollars, for the payment of which well and truly to be made we hereby bind ourselves, our successors, assigns, and representatives, jointly and severally firmly by these presents.

The condition of this obligation is such that whereas, said Thomas Drug Company and the said American Manufacturing Company entered into a certain agreement in writing, dated August 24, 1912, a copy of which is hereto attached and made a part hereof:

Now, therefore, if the said American Manufacturing Company shall well and truly perform all and singular the agreements set forth in said order and contract, then this obligation to be void; otherwise to remain in full force and virtue.

It is understood between the parties hereto that the contest provided for in said contract shall begin on December 1, 1912, and that this bond shall be terminated and determined on November 30, 1913.

In witness whereof the parties hereto have caused these presents to be executed by their proper officers and sealed with their respective seals this 30th day of November, A. D. 1912. American Manufacturing Company [Corporate Seal] by G. H. Partin, President. National Surety Company [Corporate Seal] by Chas. H. Burras, Resident Vice President. Attest: Emil L. Lederer, Res. Asst. Secretary."

The rules provided for 150 contestants. The case shows that there were only 60. It was admitted by the plaintiff that its sales for the previous year did not amount to $30,000, but was between $25,000 and $30,000, to wit, $27,567.07. The defendant claimed general failure by plaintiff to comply with its contract. Plaintiff claimed that its sales did not increase, and asked judgment for $1,800.

At the close of plaintiff's testimony the defendant moved for a nonsuit, and at the close of all the evidence the defendant moved for the direction of a verdict on the same ground. Both motions were refused, and a verdict and judgment were given for the plaintiff.

The exceptions are:

I. The first and second exceptions are the same. The one refers to the nonsuit, and the other to the refusal to direct a verdict.

"(1) That his honor the presiding judge erred in refusing to grant defendant's motion for a nonsuit at the close of plaintiff's testimony, for the reason that the testimony of plaintiff clearly showed that plaintiff had failed to carry out and perform the contract

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