McCall Co. v. Hobbs-Henderson Co. , 138 S.C. 435 ( 1927 )

February 21, 1927. The opinion of the Court was delivered by "This action was begun by the service of summons and complaint on the defendant on the ____ day of December, 1924, for the purpose of recovering damages in the sum of $2,814.36, with interest, alleged to have been sustained by the plaintiff by reason of defendant's breach of a pattern contract. The cause came on for trial before Judge T.S. Sease and a jury in the June, 1925, term of the Court of Common Pleas for Spartanburg county. At the close of all testimony, plaintiff moved for a directed verdict, which was refused. The case was submitted to the jury, which brought in a verdict for defendant. Within due time the plaintiff gave notice of intention to appeal to the Supreme Court."

The exceptions of the appellant, twelve in number, raise the following question: Error in not directing a verdict for the plaintiff. In refusing to permit the plaintiff to recover damages by reason of loss of profits for the unexpired term of the contract. In permitting the witness Switzer to interpret and explain the contract with reference to the standing credit item and thereby permit the witness to vary the terms of the written contract. Did the Judge properly construe the contract and correspondence in his charge to the jury?

His Honor could not have directed a verdict as asked for, as there was a conflict of the evidence as to the amount due. There is no evidence of a sale of patterns which Hobbs did not take at a loss of profits, and no evidence of any known value different from the contract price. McCall's witness merely said, "I have estimated" the loss of profit. As to these issues a sharp issue is made by the evidence as to the termination of the contract. Hobbs offered to return the patterns, and his offer was refused.

"Tender has been well defined as `an offer by a debtor, or other person, who is under an obligation to pay such debt or to perform such obligation, the actual payment or performance being prevented by the refusal of the creditor, or person entitled to performance, to accept the same.'" LumberCompany v. Small, 84 S.C. 434, 439; 66 S.E., 880, 882.

Where an offer by letter to carry out a sale contract was not answered, the Courts say:

"The record does not show that the defendant replied to this letter. His unexplained silence tended to show a refusal to comply with the request, and to render a tender on the part of the plaintiff unnecessary." Kirkpatrick v. Hardeman,118 S.C. 146, 153; 110 S.E., 119, 121.

"One who has himself prevented performance or tender of performance at the time set cannot take advantage of the delay." Shannon v. Freeman, 117 S.C. 480, 487;109 S.E., 406, 409.

But tender looks to the performance of a contract, and is made to secure performance. Of course, when one party notifies the other that he elects to break the contract, the tender would be an idle performance, and the law does not exact such like. Clinton Oil Mfg. Co. v.Carpenter, 113 S.C. 10, 18; 101 S.E., 47.

Witness did not vary the terms of the contract, but merely that the standing credit would be liquidated either by payment or returning the patterns. This is what the contract called for and no variance from it. He explained his book account and not the contract.

We see no error in his Honor's charge as complained of; he properly interpreted the issues as made by the pleadings and contract, evidence and correspondence, and the whole case. We see no error as complained of by the exceptions.

All exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES BLEASE and STABLER, and MR. ACTING ASSOCIATE JUSTICE PURDY, concur.