37 S.C. 7 | S.C. | 1892
The opinion of the court was delivered by
This was an action tried before his honor, Judge Witherspoon, and a jury, at the January, 1891, term of the Court of Common Pleas for the County of Spartanburg. The complaint was as follows: 1. That at the times hereafter mentioned the plaintiff was and is still a corporation duly chartered under and by virtue of the law of Missouri, and is located and doing business in the city of St. Louis, in said State. 2. That on or about the 24th day of October, 1888, the plaintiff sold and delivered to defendant on account twenty-five barrels of flour of the brand “Victoria,” at $5.05 per barrel,
The answer was as follows: 1. He admits the allegations contained in paragraph 1 of the complaint, together with so much of paragraph 2 as alleges that the defendant bought the flour mentioned in the complaint and at the prices set out in said paragraph. 2. Defendant also admits that he paid the freight on the flour as alleged, and says he has never paid the plaintiff, as he agreed to do.
3. For a defence, the defendant says: That he purchased said flour from plaintiffs by sample through one J. C. Boyd, the agent of plaintiffs. That when said flour arrived at Spartanburg, the defendant, supposing and believing that said flour was sound and good and fit for family purposes, and believing that it would bake well and make a good and wholesome bread, had it hauled up to his store where he was merchandizing, paid the freight thereon, amounting to the sum of forty dollars and fifty cents, and offered said flour to his customers for sale. All this being done before defendant ascertained that said flour was not sound and unfit for the purposes for which it was bought. 4. That said flour did not come up to the sample by which it was sold, was not sound and good flour, and was unfit for family use, and would not make up into good, sound, and wholesome bread. 5. That as soon as defendant ascertained that said flour was not good, and that it would not bake up into good, sound, and wholesome bread, and that it did not come up to sample by which it was bought, he offered to return it, or keep it at a proper reduction, which said offers were refused by the plaintiff.
For a first counter-claim, defendant says: 1. That he adopts the allegations of paragraph 3 of this answer as the first allegation of this counter-claim, and alleges that the forty and 50-100 dollars paid by defendant as freight on said flour, was money paid for the benefit and use of the plaintiff. 2. That no part
For a second counter-claim, defendant alleges: 1. That soon after he received said flour, he offered it for sale to his customers, and sold and delivered some of it to those accustomed to trade with him; that said flour did not give satisfaction to his said customers, and caused them to become dissatisfied with defendant, to defendant’s loss and injury, in the sum of one hundred and fifty dollars.
For a third counter-claim, defendant says: 1. That by reason of the flour being unfit for family use and of its failing to bake into good and wholesome bread, defendant was for a time unable to supply his customers with flour, as he had hoped to do, and was forced to purchase other flour from other places, and was greatly delayed and hindered in his business, to defendant’s loss and damage two hundred dollars. Wherefore the defendant prays judgment against the plaintiff, for the sum of three hundred and ninety dollars, &c.
The plaintiff demurred
It is respectfully submitted, his honor erred : 1. In sustaining the demurrer of the plaintiff to the 2d and 3d counter-claims of the answer of defendant.
2. In not admitting in evidence the correspondence between Dillard & Gilliland and the plaintiff.
3.. In allowing J. 0. Boyd to testify that he had sold the flour rejected by Dillard & Gilliland to parties at Woodruff, and that it gave them satisfaction—no complaints.
4. In allowing J. 0. Boyd to testify that the parties to whom he sold the flour that had been rejected by Dillard & Gilliland made no complaints.
6. In allowing the witness, J. 0. Boyd, to testify that, during the same month, he had sold a good deal of the same brand of flour to other parties, and that it gave perfect satisfaction.
7. In charging that the defendant must not only show that some of the flour failed to come up to sample, but it is incumbent upon him to show how much of it failed to come up to the sample, in order to entitle him to relief, and he is only entitled to relief to the extent of the commodity that he shows affirmatively—that is, by the preponderance of the evidence, that has failed to come up to the standard.
8. In charging that the defendant has no right to rescind, unless, 1st. There was an agreement at the time he purchased, that if the flour did not come up to the sample, he could return it; or 2d. Where there has been fraud; or 3d. Where there has been an entire failure of consideration.
9. In charging: If the defendant has satisfied you that there has been a failure of consideration—that is, that this flour did not come up to the sample by which he purchased, then the question arises, how much of that flour failed to come up to the sample, and the defendant must show what quantity, if any, has failed to come up to the sample.
10. In charging: If the failure is only in part—that is, if only some of the brands failed—then you must estimate that amount,- and take it off the value, deduct that amount from plaintiff’s claim.
11. In charging: If the defendant has satisfied you that there has been failure of a consideration, if it is an entire failure, he is entitled to nothing.
12. In charging, in substance: That when a lot of flour is bought by sample, the burden is on the vendor to show how much of- the flour failed to come up to sample.
13. In not charging that a vendor, who sells an article for a particular purpose, cannot recover if the article fail to answer the purpose for which it was sold.
We will now briefly consider these exceptions in their order.
It is the judgment of this court that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for the purpose of a new trial.