Walter Pratt & Co v. Prasier & Co

• Decision Date: 07 October 1905
• Citation: 72 S.C. 368,51 S.E. 983
• Court: South Carolina Supreme Court
• Parties: WALTER PRATT & CO. v. PRASIER & CO.

72 S.C. 368

51 S.E. 983

WALTER PRATT & CO.

v.PRASIER & CO.

Supreme Court of South Carolina.

Oct. 7, 1905.

1. Evidence—Parol—Written Contract.

Where a written contract of sale is silent as to the time of delivery, parol evidence of the circumstances of the sale is admissible to determine what is a reasonable time.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 1887.]

2. Appeal—Harmless Error.

Where the delivery of goods to a certain railroad at Iowa City was in issue, it was harmless error for the court to state that they were to be delivered to the railroad "in Chicago"; there being no dispute as to the place of delivery, and that being the seller's address.

3. Sale—Entire Contract—Performance.

Where a contract of sale was entire, failure of the seller to ship an essential article authorizes the buyer to refuse to accept the part shipped.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 387.]

4. Same.

Where plaintiffs sold to defendants an assortment of toilet articles and a counter showcase, the contract was an entire one, and a failure to deliver the showcase excused defendants in accepting the goods.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 387.]

Appeal from Common Pleas Circuit Court of Abbeville County; J. E. McDonald, Judge. Action by Walter Pratt & Co. against Frasier & Co. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. Fraser Lyon, for appellant.

Wm. N. Graydon, for respondents.

JONES, J. Of the 16 exceptions by plaintiffs to the judgment in favor of defendants in the above entitled case, the first 6 relate to rulings on the admissibility of testimony, the next 8 relate to the charge and the refusals to charge the jury, and the last 2 relate to the refusal to grant a new trial; but all the exceptions except the eighth, twelfth, thirteenth, and fourteenth, really depend upon one proposition—whether the court committed error in allowing certain testimony as to the object or purpose of the purchase of goods in question by defendants, and as to the time in which said goods were to be delivered to the Chicago, Rock Island & Pacific Railway Company, upon the ground that such testimony tended to vary or contradict a written contract between the parties. If the testimony was properly admitted, it was not error to charge the jury in accordance with that ruling, and to refuse to charge propositions in conflict therewith, and in declining to grant the motion for a new trial based upon the incorrectness of such ruling. We therefore will direct attention to this controlling question.

1. The plaintiffs brought this action against defendants for certain goods, sold and delivered to defendants at their request, consisting of an assortment of toilet articles, perfumery, drugs, and merchandise, counter showcase, and sundry advertising matter, amounting to $133.38. In support of their case, plaintiffs offered a written contract and order for said goods, signed by the parties, dated October 30, 1902, which, among other things, contained these provisions: "We deliver all goods to purchasers by delivering them to the transportation company herein specified [the Chicago, Rock Island & Pacific Railway]. * * * We have no agreement or understanding with salesmen, except as printed or written on this order. * * * Time is the essence of the agreement. Separate verbal or written agreements with salesmen are not binding upon Walter Pratt & Co. All conditions of sale must be shown on the order." The order was silent as to the time of shipment; the language being: "Please ship us, care of Chicago, Rock Island & Pacific Railway, the assortment of goods listed above, " etc. The testimony on behalf of the plaintiffs was to the effect that the order was for one of plaintiffs' regular $133.38 assortments of perfumery and toilet preparations, with a floor counter showcase, instead of the regulation revolving showcase with iron pedestal; that the order was communicated by wire on November 1, 1902; and that on same day plaintiffs delivered to the Chicago, Rock Island & Pacific Railway Company, at Iowa City, Iowa, three packagesconsigned to defendants at Mt. Carmel, Abbeville county, S. C.—one package containing the perfumery and toilet preparations, and the showcase in two packages, one containing the glass showcase and the other the counter base for same; and the advertising matter called for in the order was shipped by express on November 11, 1902, and the drafts for sterling silver thimbles were mailed to list of names furnished by defendants on November 17, 1902, in accordance with the contract between the parties. The defendant offered parol testimony for the purpose of sustaining the following defense set up in the answer: "That said goods were ordered on or about the 30th day of October, 1902, and were to be shipped immediately, but the plaintiffs failed to ship said goods when they agreed to ship them, and when the goods came they were not as represented; no complete showcase being sent in which to display said goods. That the object of these defendants in ordering said goods was to have them for holiday trade, and the defendants, having failed to receive a proper showcase in which to display said goods, notified plaintiffs of the defect, and they promised to remedy the same, but failed to do so until too late to make any sale of said goods for the holidays, and these defendants declined to receive said goods from the railroad company, and notified plaintiffs that they were in the depot, subject to the...