Furst & Thomas v. Davis

March 25, 1929. The opinion of the Court was delivered by This was an action instituted in the County Court of Richland County by Frank E. Furst and Fred G. Thomas, co-partners trading and doing business under the firm name of Furst Thomas, appellants, to recover the sum of $1,066.17 for goods sold to Walter E. Davis, respondent, under a written contract, the payment of which sum is alleged to have been guaranteed under a written contract of guaranty by L.T. Shannon, W.E. Davis, Sr., E.H. Shannon, and W.E. Goff, respondents. The respondents filed an answer, admitting and denying various allegations of the complaint, and the respondent Walter E. Davis set up a counterclaim, which was denied in a reply filed by the appellants. The action was tried before the Honorable M.S. Whaley, County Judge for Richland County, and a jury, in the Richland County Court, on the 29th day of October, 1926. When the case was called for trial in the County Court, the respondents' attorney withdrew all defenses, and relied solely on the counterclaim, set up as a second defense and by way of counterclaim, in the sum of $2,000, and by consent the jury wrote a verdict for the plaintiffs in the sum of $1,066.17, the amount demanded in the complaint. A motion for a directed verdict on the counterclaim was made by the appellants on several grounds, and this motion was denied by the presiding Judge. The jury found a verdict in favor of the defendant Walter E. Davis in the sum of $1,800 on his counterclaim. A motion was made for a new trial by the appellants, which was refused. The respondent Walter E. Davis duly entered up a judgment against the appellants for the difference between the amount conceded to be due the appellants and the amount of the verdict on the counterclaim, to wit, the sum of $733.83, and thereafter notice of intention to appeal was duly given by the appellants, and the appeal is now from the judgment and the order of the trial Judge in refusing to direct a verdict, error in his charge to the jury, and his refusal to grant a new trial to the appellants.

There are eight exceptions which appellants say raise the following questions:

I. Whether the trial Judge erred, as alleged in the fourth exception in his construction of the contract involved in the case, and in his charge to the jury concerning the same.

II. Whether the trial Judge erred, as alleged in the first, second, and third exceptions, in refusing to direct a verdict for the plaintiffs upon defendant's counterclaim.

III. Whether the trial Judge erred, as alleged in the fifth, sixth, seventh, and eighth exceptions, in refusing plaintiffs' motion for a new trial made upon the several grounds set forth in said exceptions.

IV. Whether the trial Judge did not permit the jury to arrive at a verdict in favor of defendant upon his counterclaim by mere conjecture, supposition, and guesswork, without any sufficient basis of evidence to support it.

V. Whether the verdict for defendant upon his counterclaim was not arrived at and permitted to stand in violation of the well-established rules of law governing contracts for the sale of goods, wares, and merchandise.

The grounds of the motion for a directed verdict were not stated. The contract provided that either party could terminate the contract by giving written notice. The appellant did not do this.

The exact issues raised have been decided adversely to the appellant in two cases by this Court, Furst Thomasv. Moore, 129 S.C. 223, 123 S.E., 825. The identical contract that is here involved was the subject of the litigation in that case. The Court, in speaking of this matter, 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."

It will be seen from the above that the identical contract was construed to be a contract made for the purpose of extending credit.

A still later case, however, is directly in point and on all fours with this case. W.T. Rawleigh Co. v. Wilson, 141 S.C. 182,139 S.E., 395. A reading of the contract, which is set forth in detail on page 182 of 141 S.C. (139 S.E., 395), will show that the contract is practically identical in terms with the contract in question. Reading of the Judge's charge discloses that the issues were the same in this case that are now presented to the Court in the case at bar. The exceptions, which are set forth on page 198 (139 S.E., 395), are practically similar. Quoting from this decision, we find the Court using these words: "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."

We see no reason to overrule these cases. We see no merit in any of the exceptions. All exceptions are overruled and judgment affirmed.

MESSRS. JUSTICES BLEASE and STABLER concur in result.

MESSRS. JUSTICES COTHRAN and CARTER dissent.