Woodruff Machinery & Mfg. Co. v. Timms

• Decision Date: 30 October 1912
• Citation: 76 S.E. 114,93 S.C. 99
• Parties: WOODRUFF MACHINERY & MFG. CO. v. TIMMS.
• Court: South Carolina Supreme Court

76 S.E. 114

93 S.C. 99

WOODRUFF MACHINERY & MFG. CO. v. TIMMS.

Supreme Court of South Carolina

October 30, 1912

Appeal from Common Pleas Circuit Court of Fairfield County; R. C Watts, Judge.

"To be officially reported."

Action by the Woodruff Machinery & Manufacturing Company against D Y. Timms. From a judgment for plaintiff, defendant appeals. Reversed.

Glenn W. Ragsdale, of Winnsboro, for appellant. Hanahan & Traylor and McDonald & McDonald, all of Winnsboro, for respondent.

HYDRICK J.

On July 27, 1910, defendant bought a sawmill and saw from plaintiffs and paid them $70 cash, and for the balance of the purchase price gave his note, so much of which as is pertinent to the issues herein reads as follows: "On November 1st, after date, I promise to pay Woodruff Machinery Manufacturing Co. order one hundred and ninety dollars for value received, payable at--, with interest from maturity until paid at 8 per cent. per annum, with all costs of recording and collection, including 10 per cent., if collected by law, or through an attorney. This note being given on the purchase of one No. 1 Woodruff sawmill, one 46-inch circle saw. It is understood and agreed that the title to this property is to remain in said Woodruff Machinery and Manufacturing Company until the full amount of the purchase money is paid, together with all interest and recording and attorney's fees, and all payments up to time of default shall be applied as rent for said property, and depreciation in value. In case nonpayment the Woodruff Machinery and Manufacturing Company has the right to take possession of said property and sell same either private or by advertising thirty days and sell at auction."

The complaint alleges the sale, the execution of the note, and the terms thereof, the breach of the condition thereof by failure to pay at maturity, the ownership and right of plaintiffs to the possession of the property, and the refusal of defendant on demand to deliver it to them. In his answer defendant denied the allegations of the complaint, except as therein admitted, and set up "a defense" and "a counterclaim." In his defense he admits the purchase and the giving of his note for the balance of the purchase price, and alleges, in substance, that, when he bought the mill, plaintiffs represented that it was in good and workable condition, and warranted that it would run true, straight, and uniform, which it is necessary for a good workable mill to do; that he relied upon said representations and warranty in making the purchase and in paying his money and giving his note therefor; that the representations were false, and were known to be so by plaintiffs when made, and that they were made with intent to overreach him; that the mill is unfit for the purpose for which it was bought and is worthless; that plaintiff's said warranty has been breached to his damage in a sum greater than the purchase price of the mill, and the consideration therefor has totally failed. For a counterclaim, he alleges, in substance, that he was induced by the false and fraudulent representations of plaintiffs to buy the mill and pay his money and give his note therefor, and pay the freight on it; that while he was, in good faith, trying to make it do the work it was warranted to do, he was put to the further expense of hiring extra help, all to his damage in the sum of $120. The plaintiffs demurred to the foregoing defense and counterclaim for insufficiency, because they set...