Supreme Court of South Carolina, 1919

Westinghouse Electric & Mfg. Co. v. Glencoe Cotton Mills

Supreme Court of South Carolina · Decided January 25, 1919 · Gary, Messrs, Watts, Gage, Hydrick, Fraser

98 S.E. 128; 111 S.C. 364; 1919 S.C. LEXIS 21 (South Eastern Reporter)

Counsel

Messrs. Nettles Tobias , for appellant, cite: As to the correct measure of damages proper to be recovered by defendant under its counterclaim: 82 S.C. 468 , at page 473; 29 S.C. 736 ; 89 S.C. 420 . The jury was given a broad correct rule as to the measure of damages, but they were also given an inconsistent and incorrect rule. This Court will not assume they followed the correct rule to the exclusion of the incorrect: 84 S.C. 420 ; 57 Ark. 203 ; 21 S.W. 104 ; 194 Ill. App. 58 ; 129 N.C. ___; 39 S.E. 730 ; 99 Va. 727 ; 40 S.E. 37 ; 107 Va. 733 ; 60 S.E. 58 ; 108 Va. 521 ; 62 S.E. 335 ; 13 Corpus Juris 792; 38 Cyc. 1604; 11 Cyc. Pl. Prac. 145, et seq. The instruction that "if the plaintiff substantially performed its agreement to correct the defective motors, then the defendant was absolutely liable for the full contract price," is incorrect, and entirely inappropriate to the case: 15 S.C. 93 . If the doctrine is inapplicable, it was error to charge it without qualifications: 102 N.W. 356; 124 Wis. 84 ; 66 Ill. 467 ; 3 Elliott on Contracts, p. 1878; 2 Elliott on Contracts, p. 1606. Messrs. Barron, McKay, Frierson Moffatt , for respondent, submit: There ought to be an end to this litigation: 106 S.C. 133 -137. The rulings of the trial Court on the question of damages was more favorable to the defendant than .

Dissenting Opinion

Mr. Justice Fraser

(dissenting). I think exceptions 4 and 5 should be sustained.

I think the charge complained of is clearly erroneous. When there are two statements, one general and the other specific, the specific statement restricts the rule to the specific statement.

Mr. Justice Hydrick concurs with Mr. Justice Fraser.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

The following statement appears in the argument of the appellant’s attorneys:

“Owing to the fact that there is little difference between the testimony, at the first trial and the second, we and our colleagues have thought it well to relieve the Court from reading the testimony anew; and to' state to the Court that the decision in the first case (106 S. C. 133 [90 S. E. 526]) together with the statement in the case and exceptions herein, correctly set forth the substance of the testimony necessary for the consideration of this appeal.”

In discussing the exceptions, the appellant’s attorneys say:

“The jury was given a broad correct rule as to the measure of damages, but they were also given an inconsistent and incorrect rule. We cannot say which they followed.”

The charge, which was 17 pages in length, must be considered in its entirety. In a charge of such length, it is not surprising if expressions were used, which, standing alone, might be regarded as erroneous. This action was commenced in 1913, and there should be an end of litigation, unless there was prejudicial error.

*366 None of the exceptions can be sustained, for, even conceding that there was error in the particulars therein specified, it has not been made to appear that it was prejudicial.

'Affirmed.

Messrs. Justices Watts and Gage concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.