Poster Co. v. Lick Springs Co. , 81 S.C. 114 ( 1908 )

This action was brought to recover $945.59, alleged to be due by defendant on a written contract by which the defendant ordered from plaintiff posters, fibre signs and horse covers, all to be used by defendant for advertising purposes.

The written orders given by L.L. Reading, the defendant's general manager, to plaintiff's agent were as follows:

"Order No ......... February 15, 1906.

Buffalo Lick Springs Company.

Ship to ................................... At Chester, S.C. How ship ......................... When? At once. Terms .................................. 25 Mont. 12x18 fibre signs, $5.75 M. Run in red. O.K. L.L. Reading, Gen. Mgr.

Credit commissions to Greenwood Adv. Co."

"Order No ......... February 15, 1906.

Buffalo Lick Springs Company.

Ship to ...................................... At Chester, S.C. How ship .................. When ..................

Terms: As agreed.

5,000 1-sheet posters .................. $195 00 5,000 4-sheet posters .................. 490 00

1 M each shipped at once; 1 Mont. 60 days. Balance as ordered, and all to be taken in one year. Terms: 30 days after shipment. O.K.L.L. Reading, Gen. Mgr. Four colors.

Credit commissions to Greenwood Adv. Co."

"Order No .......... February 15, 1906.

Buffalo Lick Springs Company.

Ship to ................................. At Chester, S.C. How ship .................. When ................ Terms ...................................

250 horse blankets, $107.50. 2 forms. Run in red. O.K.L.L. Reading, Gen Mgr.

Credit commissions to Greenwood Adv. Co."

The defendant admitted indebtedness for articles used and embraced in the orders to the amount of $426 and interest, but denied liability for the remainder of the sum of $945.59, with interest, claimed by the plaintiff as the balance due under the contract. The verdict was for only $426, the amount admitted by defendant to be due. The Circuit Judge refused a motion for a new trial.

L.D. Childs, president of the defendant company, was allowed to testify to a parol agreement with plaintiff's agent, Hudson, who took the orders, that one-half the horse covers were to have printed on them "Buffalo Lick Springs Water and Ginger Ale," and the other half "Drink Delightful Pickmeup. It satisfies;" and that plaintiff sent the entire order of two hundred and fifty covers with the words first above quoted printed on them; that the agent exhibited samples of the fibre signs, and that, notwithstanding those contracted for were to have folded edges, they were sent with straight edges. This evidence did not tend to contradict or vary the written orders. The writing contained no description of the fibre signs, except the size and color; no description of the posters, except they were to be of four colors; and none of the horse covers, except they were to be of two forms and red in color. The articles ordered were for advertising a specific enterprise, and the omission from the written order of the advertising words, and of the quality of the material, shows that these matters were to be covered by some other agreement. This other portion of the contract not covered by the writing and not inconsistent with it, parol testimony was competent to prove.Ashe v. Ry. Co., 65 S.C. 134, 43 S.E., 393; Earle v.Owings, 72 S.C. 362, 51 S.E., 980.

The case of Lumber Co. v. Evans, 69 S.C. 93,48 S.E., 158, is entirely different. There the attempt was made to show by parol evidence that an unconditional written contract was made on condition that it should be effective only when assented to by another person.

The exceptions as to the admission of testimony on this point are not well taken.

For the same reason, there was no error in the instruction to the jury: "I hold in this case that these memoranda here did not necessarily embrace the whole contract. So you are to take what is of these papers and the other evidence in connection with what was done at the time this memoranda was made."

The written orders were signed on behalf of the plaintiff by L.L. Reading as general manager. Childs, president of the defendant company, testified Reading was in fact its general manager. While Reading held this relation to the defendant company, in its name he wrote a number of letters to the plaintiff, and in one of these letters the promise was made to send a check for, at least, part of the account in a few days. Regarded as a letter from the defendant, this letter was obviously of value to the plaintiff. The defendant was allowed to introduce this evidence of Childs, president, in repudiation of Reading's authority to write the letters on behalf of the defendant: "Q. Well, Mr. Childs, just state what were Mr. Reading's duties and powers, and whether he worked subject to you? A. Mr. Reading was supposed to be entirely under my instructions. Q. Mr. Childs, were you present when he wrote those letters about sending a check to these people? A. No, sir; I didn't know anything about that. Q. Did you authorize him to do that or not? A. No, sir; I authorized him to write them and tell them that we would make no payment whatever until the matter of those fibre signs was settled; that I was unwilling to take them at any price; I was unwilling to take the goods — they were unsatisfactory — and be subject to a suit on the disputed part."

A general manager is the general agent and representative of a corporation in its dealings with the public, and it cannot repudiate action taken by him in the apparent scope of his authority. 14 A. E. Enc., 1002; 10 Cyc., 924. The testimony of Childs, introduced to prove the letter to have been written without authority, was, therefore, incompetent. There was also error in the admission of irrelevant testimony of the same witness concerning the forgery and flight of Reading, though this last error was not of sufficient importance to warrant a reversal on that ground alone.

The exceptions as to the refusal to grant a new trial depend on whether the verdict was contrary to the instructions of the Circuit Judge, applied to the undisputed facts of the case.

First, as to the posters. The defendant actually received 5,609, all of which were made according to the contract. Liability for these was admitted, and their price only was included in the verdict. The contract provided the defendant should order all the posters within a year from its date. This it failed to do, thus leaving on the hands of the plaintiff the remainder of the posters specially printed for defendant and of no value to any one else. The failure of the defendant to order the goods within a year was a breach of the contract, and the measure of the plaintiff's damages is the difference between the contract price and the market value of the goods in the hands of the plaintiffs. Miller v. Hilliard, Cheves, 155; HuguenotMills v. Jempson, 68 S.C. 363, 47 S.E., 687; Brookev. Laurens Milling Co., 78 S.C. 200.

The defendant contends, however, that the plaintiff had no right of action until the expiration of thirty days after February 15, 1907, and having sued on 2d March, 1907, his action as to this item was premature. The contract does say: "Terms, 30 days after shipment;" but these words obviously refer to the time of maturity of the defendant's debt, upon its compliance with its contract to order the goods, and not to its liability for a breach of its contract to order and receive the goods. The verdict was on this point contrary to the law as correctly laid down by the Circuit Court.

Second, as to the horse covers. The verdict covered the price of one-half of the horse covers, which the defendant admitted were made in accordance with the contract. There was evidence that the other covers were not made according to the contract, and these, though sent to defendant, were not used and not unconditionally accepted. There was no error of law in refusing to grant a new trial because the verdict did not include the price of all the covers.

It is equally clear there was evidence to support the finding that the defendant was not liable for the price of the fibre signs. Some of the letters of the defendant, it is true, may tend to show defendant did not intend to claim entire exemption from liability for the signs, but only an abatement in the price. But, on the other hand, there was evidence tending to show not only that the signs did not have folded edges, as ordered, but that on account of the lack of such edges they were of no value. The issue of fact thus made was for the jury.

The judgment of the Circuit Court is reversed and a new trial granted.