Sullivan v. Huff

| S.C. | Mar 8, 1886

The opinion of the court was delivered by

Mr. Chiee Justice SiMPSON.

The plaintiff, as assignee, held a large note on the defendants, other than Hewlet Sullivan, given in the purchase of certain real estate situate in Greenville County,, including the factory buildings erected thereon, with all the machinery thereof, known as the property of the Sullivan Manufacturing Company, the said note being secured by a mortgage of the property purchased, which property was afterwards sold by the aforesaid defendants to the defendant, Hewlet Sullivan, the said Hewlet obligating himself to pay whatever sum might be justly due and recoverable on the mortgage debt. The action below was brought on this note, and to foreclose the mortgage. The property was purchased by the defendants first named, other than the said Hewlet, at public sale, made by the assignee under an advertisement, in which it is alleged that certain false statements were made as to the character, quantity, and quality of the machinery. The defendants resisted full payment on the ground that the property bought was not as represented in the advertisement; that it was greatly deficient, both in quantity and quality; that there was failure of consideration; and that they had been misled by these misrepresentations, and thereby damaged to a large amount. And they asked that these matters should be inquired into, and that the amount of damage sustained by them be deducted from the mortgage debt, with leave to pay the balance into court, and be dismissed with their reasonable costs and charges.

The case was referred to the master, who, upon the testimony, reported, in substance, that the plaintiff as assignee acted in good faith in his advertisement; that the statements as to the modern character of the machinery, &c., were justified by the preponderance of the testimony; that there was no failure of consideration, but even if there was, that the defendants could not claim the benefit of the doctrine, that a sound price demands a sound commodity, for the reason they must have known all about the charaeter of the property bought, or might have known it, from their near residence thereto, and their familiarity with the factory during all the time it had been in operation before the purchase— one at least having been a stockholder, and two or more of them having been shown through and afforded ample opportunity to examine the machinery before the purchase was completed. And he concludes, therefore, that even if it had been shown before him that the property was not as represented in the advertisement, yet the defendants could not, under the circumstances, claim a deduction; stating distinctly, however, that this was not shown by the preponderance of the testimony. -He reported that plaintiff was entitled to recover the full amount of his mortgage debt, which at that date amounted to $18,717.55. He also, reported in favor of an insurance claim, not involved here.

To this report the defendants excepted: 1st, as to the findings of fact on the question of misrepresentations in the advertisement, and the failure of consideration. And, 2d, because the master erred in holding that the doctrine of sound price, &c., did not apply to the case. His honor, Judge Hudson, overruled these exceptions and confirmed the report, ordering a foreclosure sale, with leave to issue execution for any deficiency, &c. The appeal raises the same questions as those below.

As to the questions of fact. The testimony is very fully re- ■ ported, as taken down from the witnesses and then examined and discussed in the elaborate report of the master, in which he shows very satisfactorily that its preponderance sustains his findings. True, the witnesses do not entirely harmonize, and there is some difference of opinion between them as to the quality of some portions of the machinery, but upon weighing the whole evidence, we do not feel at liberty to reverse the master’s finding, sustained as it is by the unqualified concurrence of the Circuit Judge.

Nor was there error below, by the Circuit Judge, in overruling the exception to the master’s report in regard to application of the doctrine of a sound price, &c. Thomson v. Sexton, 15 S. C., 93, and the cases there cited. It is apparent, from what is stated, that the defendants (purchasers) had full opportunity to examine the property; some of them went through the factory more than once, after they had bid it off, and before the contract was consummated by the execution of papers; one of them had been an original stockholder; all were near neighbors; they completed the contract without complaint; and nothing was ever said about misrepresentation or failure of consideration until the note fell due and payment was demanded. But even if it had been otherwise, the complete answer to all this is, that the master has found as matter of fact that there was no misrepresentation nor failure of consideration of any kind. The Circuit Judge has confirmed this finding, and wc cannot say that the finding is either without testimony to sustain it, or is against.the manifest weight thereof.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.