Yancey v. Southern Wholesale Lumber Co.

• Decision Date: 08 December 1925
• Docket Number: 11878.
• Parties: YANCEY ET AL. v. SOUTHERN WHOLESALE LUMBER CO.
• Court: South Carolina Supreme Court

131 S.E. 32

133 S.C. 369

YANCEY ET AL. v. SOUTHERN WHOLESALE LUMBER CO.

No. 11878.

Supreme Court of South Carolina

December 8, 1925

Appeal from Common Pleas Circuit Court of Richland County; C. C Featherstone, Judge.

Action by B. E. Yancey and G. H. Yancey, copartners doing business under the firm name and style of Yancey Bros., and another against the Southern Wholesale Lumber Company. From a judgment for defendant on its counterclaim, both parties appeal. Affirmed.

See also, 123 S.E. 767.

Jos. L. Nettles, of Columbia, for plaintiffs.

D. W. Robinson and D. W. Robinson, Jr., both of Columbia, for defendant.

COTHRAN J.

This action was instituted in January, 1921, upon several promissory notes given by the defendant in February, 1920, for certain machinery which had been sold by the plaintiffs to the defendant, under a contract dated January 31, 1920. At the time of the commencement of the action the plaintiffs procured an attachment and had it levied upon the machinery. The "statement" in the "case" recites:

"The answer admitted execution of the notes, denied certain allegations of the complaint as to the amount due, set up a counterclaim for damages on account of breach of warranty, and alleged fraud in the representations as to the quality of the machinery."

It appears that, after the machinery had been levied upon under the attachment issued in January, 1921, it was "left standing exposed to the weather, just off a public highway, about 8 miles from the town of Edgefield," "until August, 1922." "Case." The attorneys for the respective parties then had the clerk of court of Richland county, who issued the attachment, to sign an order, "not dated in the record for appeal," by consent, directing the sheriff to deliver the machinery to the plaintiffs upon their executing "a surety bond to answer any judgment obtained by the defendant upon its counterclaim." Accordingly, on August 23, 1922, the plaintiffs executed the bond required, took charge of the machinery, had it shipped to Atlanta, sold a part of it at private sale for $5,500, and retained a part of it, stored in a warehouse.

The bond recites that "counsel for the parties hereto have agreed that it is for the best of all parties concerned that the machinery be sold," without stating how or by whom.

The case was first called for trial before Hon. J. W. De Vore and a jury. After the plaintiffs had closed their case and the defendant had offered evidence in support of its counterclaim, and the plaintiffs had replied, the defendant made a motion for a directed verdict in its favor, upon the grounds that the plaintiffs had voluntarily taken into their exclusive possession and control the machinery; had removed it from the state and from the jurisdiction of the court; had sold a large part of it at private sale without notice to the defendant, and retained the proceeds of sale without accounting to the defendant therefor; and had not tendered the remaining machinery to the defendant or rendered any accounting of its value. The circuit judge granted the motion upon the grounds stated by him as follows:

"My judgment also is that, when they removed that property from this state, took it out of the jurisdiction of the courts of this state, and sold it at private sale, without giving any notice whatsoever to the defendants of the sale, they were guilty of a conversion, and, whether that property, if that was a conversion, and that is my judgment that it was, whether that property brought enough to pay the claim of the plaintiffs or not, they cannot in this case get a judgment for any balance that may be due, even if it did not bring enough to pay the plaintiffs' claim. If it had brought more than enough to pay the claim of the plaintiffs, it was the plaintiffs' duty to account for it and turn it over to these defendants."

The case was then submitted to the jury upon the defendant's counterclaim, the circuit judge holding, over the protest of the defendant, that the plaintiffs were entitled to the opening and reply in the argument. The jury rendered a verdict in favor of the plaintiffs upon the defendant's counterclaim. Upon appeal by the defendant, this Court held (129 S.C. 48, 123 S.E. 767) that, the plaintiffs' cause of action having been eliminated by the direction of a verdict in favor of the defendant, there was nothing to be tried except the defendant's counterclaim, as to which the defendant was the actor and entitled to the opening and reply. A new trial was accordingly ordered, limited to the defendant's counterclaim. The second trial came on before his honor, Circuit Judge Featherstone, at March term, 1925, and resulted in a verdict of $1,000 in favor of the defendant. From this judgment both parties have appealed.

We think that the circuit judge (Judge De Vore) was entirely wrong in his disposition of the case upon the first trial, so far as the plaintiffs' cause of action was concerned. He held that the conduct of the plaintiffs in reference to the machinery amounted to a conversion of it, and that the effect of that conversion was practically an extinguishment of the notes held by the plaintiffs against the defendant; "that that settled the debt." The undisputed evidence, documentary, shows that, by the written consent of the defendant, the clerk of court signed an order "for the best interest of all parties concerned," that the machinery which had been lying out exposed to the weather from January, 1921, to August, 1922, be delivered to the plaintiffs to be sold, manifestly imposing a trust upon the plaintiffs to exercise due care in disposing of the property and in accounting to the defendant for its proceeds. How that can be construed into a conversion of the defendant's property, an actionable tort, is beyond our comprehension. In the case of Nelson v. Whetmore, 1 Rich. 318, a conversion is defined thus:

"Any act in exclusion or defiance of the plaintiff's right, any assumption of property and of the right of disposition, any intermeddling indicating a claim of ownership, any assertion of the control which belongs to the owner, whether for the benefit of the defendant or of a third person, may furnish proof of the conversion."

Whatever was done with the property by the plaintiffs was done with the express written consent of the defendant and for its benefit, as well as for the plaintiffs, except that the details of the disposition of it were not specifically agreed upon. After the defendant had agreed that the plaintiffs take charge of the property and sell it, did they expect the plaintiffs to sell it where it had stood for 19 months, 8 miles in the country? Or in its then condition? Manifestly it was intended that the plaintiffs should take charge of it, put it in proper condition, and sell it. Was there a better way to perform this duty than to ship it to their place of business in Atlanta and repair it? On August 31, 1920, before the property was delivered to the plaintiffs, they wrote to the defendant:

"Of course, we are glad to help you out of any difficulty we can, and, if you care to ship your outfit to Atlanta, we will have same overhauled, or rather cleaned up, and give a list of the material to all of our men and instruct them to sell it for you. We will be glad to do this for you, if you care to do so, and, just as soon as the sale is made, we will either have the parties deal direct with you, or we will make the sale for you and send you balance due."

This letter does not appear to have been answered by the defendant; but on October 1, 1920, the defendant wrote, demanding that the plaintiffs take the machinery and return all cash paid and unpaid notes. On October 5, 1920, the plaintiffs wrote the defendant:

"If you see fit and do not care to have the outfit, you can send this in to us and we will have your tractor and trailers cleaned up and place them on the market, giving you entire proceeds from this sale, after our claim is satisfied, and if you wish it held for any stipulated price, we will be glad to do this also."

The defendant answered this letter on October 8, threatening, notwithstanding the consent order permitting delivery to the plaintiffs and sale by them, that, if the demand to return cash and notes should not be complied with, the defendant would sell the machinery where it stood at public outcry for the purpose of reimbursement.

Manifestly, therefore, there was no conversion by the plaintiffs of the machinery. If the defendant was not satisfied with the conduct of the plaintiffs in handling and selling the machinery, the way was open by supplemental answer to call them to account. Even if the plaintiffs had taken possession of the tractor without the consent of the defendant and sold it at private sale, that at the most would have satisfied only the separate note for the tractor secured by a mortgage upon it, under the doctrine declared in Fowler v. Goldsmith, 131 S.C. 119, 126 S.E. 431; the other note for the trailers was not secured.

From the action of Judge De Vore in directing a verdict in favor of the defendant upon the plaintiffs' cause of action however, the plaintiffs did not appeal, and, as held upon the former appeal, that issue is res adjudicata; and, while that matter cannot be inquired into in this appeal, the result and the basis of the decision are relevant upon the vital question in this appeal, and that is, should the defendant have been allowed to recover damages based upon the alleged rescission of the contract of sale? As we understand the contention of the defendant now, it is that the defendant should have been allowed to recover, as upon a rescission of the contract of sale, the amount which it paid upon the contract price, $4,000, and the damages sustained in...