W.T. Rawleigh Company v. Wilson

August 30, 1927. The opinion of the Court was delivered by This action was commenced in the Richland County Court by the service of summons and complaint on June 18, 1924. The same was brought by the W.T. Rawleigh Company, appellant, to recover the sum of $1,289.11 for goods sold and delivered to T.A. Wilson, respondent, under a contract, the payment of which was alleged to have been guaranteed under a written contract of guaranty by J.M. Thomas, S.J. Kinsler, and J.H. Wilson, respondents. The respondents filed an answer denying and admitting various allegations of the complaint and setting up several counterclaims, which were generally denied in a reply filed by the appellant. The action was tried before Hon. M.S. Whaley, presiding Judge, and a jury in the Richland County Court on June 23, 1925. On trial the respondents withdrew all defenses and relied solely on their counterclaim set up as their third defense and praying for damages by way of counterclaim in the sum of $2,000.00. A motion for a directed verdict was made by the appellant on several grounds and which was denied by the presiding Judge. The jury returned a verdict in favor of the appellant in the sum of $1,289.10, the full amount claimed, and a verdict in favor of the respondents in the sum of $2,000.00, the full amount claimed in their counterclaim. A motion for a new trial was made by the appellant, which was refused except in that the respondents were required to remit the sum of $500.00 from their verdict or a new trial be granted. The respondents duly remitted on July 27, 1925, and judgment was duly entered by the respondents against the appellant on July 8, 1925, in the sum of $210.80 and costs. Notice of intention to appeal was duly filed by the appellant, and appeal is from the orders of the presiding Judge in refusing to direct a verdict and refusing to grant a new trial in favor of the appellant.

The exceptions are seven in number and raise the following questions, as stated by the appellant:

"1. Failure of the trial Judge to direct a verdict in three particulars:

"(a) Because the respondents admitted they were due the amount claimed by the appellant, and the appellant had a right, under its written contract, to determine the quantity and amounts of its products it should sell to respondent, T.A. Wilson, and the exercise of this right and the failure to ship further goods was the basis of respondent's counterclaim.

"(b) Because the respondents admitted they were due the amount claimed by the appellant, and the appellant had a right, under its written contract, to terminate the same, either in toto or declining to make further sales on credit, which it did, and the respondents had no claim for damages for failure to make further sales either for cash or credit.

"(c) Because the respondents admitted the amount claimed by the appellant, and if there was a breach of contract on the part of the appellant, there was also a breach of contract on the part of the respondent, T.A. Wilson, and there could be no recovery on the counterclaim.

"2. Failure to grant a new trial on account of errors in charge.

"3. Failure to grant a new trial because the damages found against appellant on counterclaim were not supported by the evidence.

"4. Failure to grant a new trial on account of neglecting to charge measure of damages on counterclaim."

A similar contract has been construed by this Court inFurst and Thomas v. Moore, 129 S.C. 223;123 S.E., 825, wherein this Court says:

"It was the intention, as we gather from the contract entered into by the parties, that it was for an indefinite time for a future course of dealings between the parties, and we construe the contract to be a continuing guaranty. The object of the contract was to strengthen Moore's credit and enlarge his trading opportunities. The plaintiffs felt safe in extending credit to Moore by reason of the fact that they had a contract with the appellants of guaranty of Moore."

The appellant had no right to terminate the contract without notice. There is no doubt the contract was entered into by the parties, and the contract could not be arbitrarily terminated by the seller without giving notice to the buyer. The seller simply terminated the contract and did not sell the buyer the goods under the contract but required him to pay cash before he could receive the goods contracted for. There is no proof that the contract was terminated under its terms. The contract provides that it should be terminated by written notice. It is not contended on the part of the appellant that any written notice was given of the termination of the contract as to the installment payments in accordance with the terms of the contract as complained of in Exception 3.

There is no evidence that installments were demanded in accordance with the contract and that the respondent failed to meet the installments. The seller failed to give the respondent any notice of this reason to carry out the contract and had terminated it on this account. No objection was made to the testimony of the defendant on the ground that the damage was speculative in character and no motion was made for a directed verdict on that ground.

The County Court did not consider that ground, but if the contract was terminated by the appellant without notice to the respondent through no fault of the respondent, then the damage which would naturally flow from the unlawful breach of the same would be damages and such profits as could be reasonably anticipated could be recovered and are no longer speculative damages. Martin v. Railroad, 70 S.C. 8;48 S.E., 616. Lipscomb v. Railway, 56 S.C. 148;35 S.E., 194. Jenkins v. Railway, 58 S.C. 373;36 S.E., 703. Lester v. Fox Film Co., 114 S.C. 533;104 S.E., 178.

The exception as to the failure of the Judge to charge upon the question of the measure of damages, the order of the Judge in the case answers that and the cases of Youngblood v. Railway Co., 60 S.C. 9;38 S.E., 232; 85 Am. St. Rep., 824. Sudduth v. Sumeral, 61 S.C. 276;39 S.E., 534; 85 Am. St. Rep., 883. State v.Adams, 68 S.C. 421; 47 S.E., 676. White v. C. W.C.Railway, 132 S.C. 448; 129 S.E., 457. State v. Westet al. (S.C.), 136 S.E., 736.

All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur in result.