Thomson v. Sexton

• Citation: 15 S.C. 93
• Decision Date: 30 March 1881
• Docket Number: CASE 1016.
• Parties: THOMSON v. SEXTON.
• Court: South Carolina Supreme Court

15 S.C. 93

THOMSON v. SEXTON.

CASE No. 1016.

Supreme Court of South Carolina.

March 30, 1881

1. Error may be committed in charging a correct principle of law as governing a case, where such principle is inapplicable to the issues on trial.

2. That a sound price warrants a sound commodity is a correct rule but does not apply where the defendant, after trial of a cotton gin, and with full knowledge of its defects, gave his note for a price agreed upon, relying upon the promise of plaintiff to repair the machine.

Before THOMSON, J., Spartanburg, October, 1879.

Action upon sealed note by H. H. Thomson against F. M. Sexton commenced January 28th, 1878. The case is fully stated in the opinion.

Mr. J. S. R. Thomson , for appellant.

Messrs. Bobo & Carlisle , contra.

OPINION

MCIVER A. J.

This action was brought to recover the balance due on a note, under seal, for $133.60, dated February 1st, 1876, and payable one day after date, upon which there was a payment by defendant on March 15th, 1876, of $36.60. The defence set up by the answer was that the note was given under the following circumstances: " That in 1875 defendant had contracted with plaintiff to purchase a cotton gin for $207; that plaintiff then furnished him with an old gin to be used without charge until a new gin arrived; that defendant used old gin during the winter of 1875 and 1876; that about January 1st, 1876, defendant paid plaintiff $60; that in February, 1876, defendant offered plaintiff to return old gin to him and let him keep the $60, and end the matter; that plaintiff refused, but promised, at next fall, to send a party to fix up the gin to defendant's satisfaction, and would deduct $30, or that plaintiff would send and let him have new gin; that defendant thereupon paid $30 and gave his obligation as alleged in complaint; that plaintiff never sent any one to fix up the gin." At the trial the plaintiff testified that he had agreed in 1876 to furnish defendant a new gin; that in February, 1876, defendant agreed to take the gin first furnished, which was nearly new and a good gin; that a settlement of accounts was then had for the gin and belting furnished, and defendant thereupon gave the note upon which this action was brought, and that it was his custom to send out his machinist to fix up gins sold by him, and he would have done so for defendant if defendant had asked him. Defendant testified to the effect set forth in his answer; that the pinion of the gin was worn; that it was not worth more than the money he had already paid on it; that after using it a short time he laid the gin aside and used his old gin that he had been using for years, and has not used the gin he received from plaintiff since; that he gave his note to plaintiff under the distinct understanding that plaintiff would send a machinist to repair the gin to defendant's satisfaction the following autumn or send him a new gin; that the machinist never came to repair the gin, and a new one was never tendered. He also stated that he had " tendered back the gin before the note was given, but not afterwards, until February, 1878," which seems to have been after this action was commenced, as it is stated in the " case" that the summons and complaint were served January 28th, 1878. The defendant also introduced several witnesses who testified to the same effect as to the value of the gin, some of them saying that the gin was not worth $50. The plaintiff, in reply, introduced testimony that the gin was a valuable one, and could be repaired at a very small expense.

The Circuit judge charged the jury " that the rule was that a sound price warranted a sound commodity, and that if the gin sold to defendant was worth no more than had already been paid for it, then the jury should find for the defendant." The jury having found for the defendant the plaintiff made a motion for a new trial, which motion was refused, " on the grounds that, although a new contract might have been made in which the defects of the gin had been considered, yet the rule that a sound price warrants a sound commodity, was the rule by which the case should be governed, and that if the jury believed the statement of the defendant, the verdict could be upheld on...