J. B. Colt Co. v. Fox

January 25, 1922. The opinion of the Court was delivered by This is an action by the plaintiff against the defendant for the purchase price of an acetylene lighting outfit and fixtures, sold by the plaintiff to the defendant. The order was in writing, signed by the defendant and accepted by the plaintiff.

The contract in part reads:

"Please furnish the following generator and appliances f. o. b. factory to the undersigned."

The generator arrived; the appliances did not. The defendant refused to accept the generator without the appliances.

It is undisputed that the generator and appliances were delivered to the common carrier. The shipment was an open shipment. The bill of lading was not forwarded until after this suit had been commenced. The plaintiff wrote to the defendant to return the goods, but the defendant said he did not have them, and seems to have made no effort to return what he had, as a matter of law if not of fact. The shipment was an open shipment, and a part of the goods were at Monetta, S.C. the defendant's freight station.

This is a stronger case for the plaintiff than OxweldAcetylene Co. v. Davis, 115 S.C. where we read at page 431 (106 S.E., 157):

"It is not disputed that the plaintiff, in compliance with the terms of the written contract, delivered the outfit to a common carrier at Chicago for transportation to the defendant at Laurens, S.C. on April 3, 1918; that it was duly transported and arrived at destination on April 22d; that the defendant received timely notice of its arrival and refused to take it out of the depot. If this delivery was according to the terms of the contract between the seller and the buyer, the delivery to the carrier was a delivery to the buyer."

Both plaintiff and defendant moved for the direction of a verdict in their favor. A verdict was directed for the defendant. The authority above quoted shows that the verdict should have been directed for the plaintiff, and it was error to direct a verdict for the defendant.

The judgment appealed from is reversed.

MR. JUSTICE WATTS did not participate on account of sickness.