164 S.E. 895 | S.C. | 1932
August 9, 1932. The opinion of the Court was delivered by In the summer of 1925 the plaintiff sold and delivered to the defendant A.H. Coclin, following the execution of a written contract, an electric soda fountain outfit with double capacity Frigidaire unit, and received from him in the transaction an old outfit, $288.00 in cash, and, as evidence of and security for the balance of the purchase price, two promissory notes for $1,511.00 and $1,080.00, respectively, and a chattel mortgage of the outfit sold him. Almost immediately after the installation of the outfit and from time to time thereafter, defendant complained to plaintiff that it was not functioning properly, and plaintiff sent representatives to Allendale to adjust it. Eventually, after having paid some of the installments due on the notes, defendant defaulted; and plaintiff commenced this suit, in February, 1928, for foreclosure of its mortgage.
As a defense to the action, defendants set up failure of consideration; that at the time the contract was made, plaintiff represented that the outfit to be shipped would keep in a frozen and merchantable condition all ice cream placed in the large compartments, that it would keep the plain and carbonated water of the fountain refrigerated at all times to the temperature of between 38 and 40 degrees F., and that, in order to properly operate the outfit, the Frigidaire *402 unit would not be required to run, under any circumstances, more than fifteen hours out of any twenty-four; that the outfit furnished by plaintiff to them failed to keep the ice cream and the water as so represented, and that the Frigidaire unit, instead of operating fifteen hours out of twenty-four, ran continuously without interruption and even then failed to refrigerate the ice cream container and the water of the fountain; that despite their repeated notification to plaintiff of these conditions and plaintiff's efforts to correct the defects, the outfit never properly performed its functions; and that the plant was of little or no value to them. They also set up a counterclaim, based upon practically the same state of facts, for damages for breach of warranty of soundness and reasonable fitness of the outfit for the purpose for which it was manufactured and sold, two of the items being the value of ice cream lost through failure of the outfit to keep it frozen and the extra cost of electric current to operate the machinery.
The case was referred to the master for Allendale County, who duly filed his report. He found that under the testimony the plaintiff had knowledge of the purposes for which the plant was purchased and that under its warranty it was its duty to furnish a plant of reasonable soundness and fitness for such purposes, and that the outfit furnished, even after repeated efforts by the plaintiff to adjust it, would not perform the services reasonably to be expected of it; and so concluded that there had been a partial failure of consideration. In order to ascertain the damages suffered by the defendants on this account, that is, the difference between the actual value of the outfit in its defective condition and its value had it been as warranted, he appears to have assumed that the latter value was the same as the purchase price and to have included in the purchase price the old outfit (not mentioned in the contract), delivered to the plaintiff by the defendants, the value of which he placed at $1,000.00, and the purchase price named in the contract, $2,879.00, making *403 a total of $3,879.00. He found the value of the outfit in its defective condition to be "not over about two-thirds of the price charged by the plaintiff," and fixed such value at $2,600.00, thus allowing an abatement of $1,279.00, and found that defendants were entitled to the following credits: The old plant, $1,000.00; $288.00 paid upon the execution of the contract; and $881.00 paid on the purchase money notes — aggregating $2,169.00. Deducting this amount from the actual value or abated purchase price, $2,600.00, he found that there was due on the notes a balance of $431.00, which, with interest and attorney's fees, amounted to $626.95.
As to the counterclaim, he sustained the defendant's claim for loss of ice cream due to the plant's failure to function and for extra cost of electric current, finding the amount of their damages from these causes to be, respectively, $730.00 and $500.00; and recommended that defendants have judgment on their counterclaim for $1,230.00. The net result of his findings and conclusions was that the defendants should have judgment against the plaintiff for $603.05.
The matter came on to be heard upon exceptions to the master's report, before Judge E.C. Dennis, who overruled the master and filed a decree giving the plaintiff judgment for the full amount unpaid on the notes (including interest and attorney's fees), $2,479.31, and denying the counterclaim. From this decree defendants appeal.
We shall not discuss the exceptions seriatim, but in reaching our conclusions shall necessarily consider and dispose of all questions raised.
As to plaintiff's claim on its notes and mortgage: We think that testimony properly admitted shows unquestionably that plaintiff knew the purposes for which the outfit was purchased by defendants, and, in the absence of an express warranty or a nonwarranty clause in the written contract, there was an implied warranty of reasonable fitness, which was not excluded by the provision in the contract that. "It covers the entire agreement between *404
us." See Liquid Carbonic Company v. Coclin,
Purchase price stated in contract ................ $2,879.00 Old outfit ....................................... 1,000.00 _________ Total purchase price ............................. $3,879.00
On $40.00 from 4-1-26 to 3-5-27 at 6% ..................... $ 2.23
On $40.00 from 3-5-27 to 8-5-32 at 7% ..................... 15.17
On installments of $90.00 each for the periods and at the rates indicated:
From 4-1-26 to 4-5-27 at 6% ... 5.46
From 4-5-27 to 8-5-32 at 7% ... 32.60
From 4-1-26 to 5-5-27 at 6% ... 5.91
From 5-5-27 to 8-5-32 at 7% ... 33.08
From 4-1-26 to 6-5-27 at 6% ... 6.36
From 6-5-27 to 8-5-32 at 7% ... 33.55
From 4-1-26 to 7-5-27 at 6% ... 6.81
From 7-5-27 to 8-5-32 at 7% ... 32.03
From 4-1-26 to 8-5-27 at 6% ... 7.26
From 8-5-27 to 8-5-32 at 7% ... 31.50
From 4-1-26 to 9-5-27 at 6% ... 7.71
From 9-5-27 to 8-5-32 at 7% ... 30.98
From 4-1-26 to 10-5-27 at 6% .. 8.16
From 10-5-27 to 8-5-32 at 7% .. 30.45
From 4-1-26 to 11-5-27 at 6% .. 8.61
From 11-5-27 to 8-5-32 at 7% .. 29.93
From 4-1-26 to 12-5-27 at 6% .. 9.06
*406
From 12-5-27 to 8-5-32 at 7% .. $ 29.40
From 4-1-26 to 1-5-28 at 6% ... 9.51
From 1-5-28 to 8-5-32 at 7% ... 28.88
From 4-1-26 to 2-5-28 at 6% ... 9.96
From 2-5-28 to 8-5-32 at 7% ... 28.35
From 4-1-26 to 3-5-28 at 6% ... 10.41
From 3-5-28 to 8-5-32 at 7% ... 27.83
From 4-1-26 to 4-5-28 at 6% ... 10.86
From 4-5-28 to 8-5-32 at 7% ... 27.30
______
Total interest ................ $519.36 $ 519.36
_________
Total amount principal and interest due 8-5-32 1,729.36
Ten per cent. attorney's fees ................ 172.93
_________
Total amount due 8-5-32 ...................... $1,902.29
As to the counterclaim: In a case of this kind, the buyer may recover, in addition to general damages, any special or consequential damages which he may have suffered by reason of breach of warranty and which are the natural and direct or proximate result of the breach and may reasonably be considered as within the contemplation of the parties at the time the contract was made. 24 R.C.L., 256; 55 C.J., 868; National Tire Rubber Companyv. Hoover,
The judgment of the Circuit Court must accordingly be modified so as to allow plaintiff judgment against the defendant A.H. Coclin in the sum of $1,902.29, upon which should be credited the sum of $730.00 allowed the defendants on their counterclaim, leaving a net judgment in favor of the plaintiff of $1,172.29, which bears interest from August 5, 1932; as thus modified the decree must be affirmed. And it is so ordered.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM and ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur. *408