Bond Bros. Cash & Delivery Grocery, Inc. v. Claussen's Bakeries, Inc.

The opinion of the Court was delivered by Mr. Justice Baker. Respondent runs a retail grocery store in Columbia. Appellant conducts a bakery, and sells its bread, cakes, and pies to retail stores. Appellant’s method of doing business was similar to that of other bakeries, that is, its merchandise is intrusted to the drivers of its delivery trucks, such drivers being its agents and representatives, and each driver is required to account to appellant for all merchandise delivered to him. Appellant had customers to whom it extended credit the respondent being such a customer. The drivers for appellant have their customers and make from two to four deliveries of merchandise daily, leaving with the customer on such delivery a list of the bread, etc., put upon the bread rack, and the customer can check from this list and ascertain if the merchandise shown thereon has been actually delivered. Appellant has no way of checking against the actual deliveries, but is dependent upon the honesty of its drivers and the retail grocer or merchant protecting himself by checking deliveries as shown by the lists left with him at the time the delivery is made. Among the drivers of delivery trucks for appellant was a Mr. Bennett, who had' been employed by appellant for two years or more, and made all deliveries of appellant’s merchandise sold to respondents during the years 1934, and throughout 1935, until in November, when he was discharged by appellant. In addition to selling the merchandise of appellant, the respondent also sold the merchandise of two other bakeries. Respondent, as did appellant, had every confidence in the integrity and honesty of Mr. Bennett, so much so that respondent did not check against his deliveries as shown by the list left with it, and in course of time did not require him to even leave a list. Elowever, respondent complained to Ben *97 nett about the size of its weekly bills, and complained to appellant that it was not making the money it should from the gross business being done — in fact, could barely meet its bills. Finally on October 22, 1935, a Mr. Gleaton, the route supervisor of appellant, went to one of the operators of respondent and suggested that all merchandise coming into the store should be checked to see that the quantity purchased was actually received. This suggestion and advice was followed, and in so doing it was found that within four days Bennett had “shorted” respondent $16.70 or $16.73. Whereupon the operators of respondent and Mr. Gleaton, the representative of appellant as aforesaid, confronted Bennett with the evidence they had against him, and he admitted that he had been short in his deliveries to the extent of about $50.00. Appellant offered to pay this amount to respondent, but respondent refused to accept it, and brought suit against appellant waiving claim for all amount in excess of $3,-000.00, and prayed judgment in the sum of $3,000.00. Respondent’s cause of action is stated in Paragraph 7 of its complaint, as follows: “(7) That the acts of the defendant were willful, wanton, negligent and fraudulent and were done with the intent and purpose of cheating and defrauding this plaintiff out of its just money and that by so doing the defendant breached its contract with the plaintiff to charge for goods only delivered and sold and that said breach of the contract was accompanied by fraudulent acts in that the defendant pretended to deliver to the plaintiff certain merchandise for which the plaintiff was charged and failed to deliver it; in that the defendant knowingly collected from the plaintiff amounts far in excess of that which the plaintiff was legally entitled to pay over a long period of time; in that the defendant, relying upon the trust which the plaintiff placed in the defendant, overreached and defrauded the plaintiff out of large sums of money.” Before or at the time of answering, appellant moved to strike certain allegations of the complaint, portions of which *98 were stricken. There are two exceptions relating to the refusal to strike out certain portions. Without discussing in detail, which is unnecessary, we overrule these exceptions. In fact, Paragraph 3 of the complaint is helpful to appellant, in that it tends to show that respondent was familiar with the method in which appellant conducted its business, and that appellant was reliant entirely to the honesty of its driver and respondent’s use of due diligence to protect itself against the very happening for which complaint is made. The answer of appellant sets forth that respondent was one of its regular customers, and over a considerable period of time had purchased and used its bread with no complaint at any time that it was not getting value received; that it had come to appellant’s attention that the driver of its truck, who customarily delivered bread to respondent, had not in recent deliveries delivered the quantity of bread for which respondent was paying, and upon taking it up with the driver of the truck he offered to restore an admitted shortage of $50.00, which amount appellant continues to stand ready and willing to refund; denied that it had defrauded respondent in any respect 'or deprived it of any of its rights; and denied any and all allegations not specifically admitted. In addition, the answer of appellant contained this paragraph, which we set out in full: “3. Further answering the complaint and as a further defense thereto, the defendant alleges that at the times referred to in the complaint, the plaintiff purchased bread from the defendant at a fixed price therefor, and had the same or a better opportunity than the defendant to see that the bread was properly delivered, and received and used said bread making no complaint thereabout and giving the defendant no opportunity whatsoever of determining the amount of bread delivered at each delivery, but in receiving said bread and paying therefor and using same agreed to and confirmed the sale therefor; and defendant alleges that the plaintiff is now estopped by its acts and *99 dealings to question the amount of bread which it has received and accepted.” At the conclusion of the testimony in behalf of respondent (plaintiff below), the appellant (defendant below) moved for a nonsuit, among the grounds, that the evidence shows that there was no count made of the actual delivery of bread during the period for which it is claimed; that since respondent made no count of it or check-up on it, failed to make any complaint, and used the bread, continued to use it, and continued to order it, that it cannot now complain, and now seek to determine the amount, when they could before easily have made the count and check-up on it, and found the delivery short, if it was short. In other words, by accepting it as the amount delivered, and paying for it, and making no complaint, it waived any future complaint in reference to any shortage. Again at the conclusion of all the testimony, appellant moved on the same ground for a directed verdict, except as to $50.00 admitted to be due, which motion was refused, and appellant’s Exception 9 is based on the refusal to grant these motions. That “a sound price warrants a sound commodity” is a legal maxim and principle of law too well established in this State to require citation of authority therefor. This principle, by reason of the facts of the cases heretofore coming before this Court, has been applied to quality only, but it does not require even an extension of the principle to make it applicable also to quantity, and we can see no good reason why it should not as well apply to quantity. Respondent takes the position that, in fact, the case of Greenwood Mill v. Tolbert, 105 S. C., 273, 89 S. E., 653, Ann. Cas., 1917-C, 338, is authority for this position. Inferentially, this may be true, although a careful reading of this case will not bear out such a conclusion. *100 In the Greenwood Mill-Tolbert case, the defect was latent and hidden, and the purchaser was unable to detect the defect at the time of purchase. In the case under consideration, the “defect” was “op the surface,” and readily ascertainable by the respondent. And in this case the defense of estoppel by waiver is pleaded, it being appellant’s contention that any loss which respondent may have suffered was due to the negligence of respondent in failing to count the deliveries of bread when made, well knowing, as shown by the testimony, that appellant had no means of knowing — of more than suspecting, in a most general way — that the deliveries were short; and respondent having an absolute, easy, and open manner and method of ascertaining if the correct and accurate deliveries were actually being made, and having failed to use even ordinary care, it has waived any question as to the quantity of the deliveries, and is thereby estopped from maintaining an action therefor. In the case of Southern Coal Co. v. Rice et al., 122 S. C., 484, 490, 115 S. E., 815, 817, we find the following language: “* * * where the defect or inferiority which constitutes the alleged breach, whether of a condition precedent or of a warranty, is obvious or may be discovered by reasonable inspection or examination before acceptance, the purchaser’s remedy is to refuse to accept the goods when delivered. By an acceptance of goods a purchaser waives the right to allege inferiority of quality which is obvious to him. Brooke v. Milling Co., 78 S. C., 200, 205, 58 S. E., 806, 125 Am. St. Rep., 780; Woods v. Cramer, 34 S. C. [508], 516, 13 S. E., 660; Vanderhorst v. Mc-Taggart, 2 Bay, 498; Mitchell v. McBee, 1 McMul., 267, 36 Am. Dec., 264.” See, also, the case of Griggs-Paxton Shoe Co. v. Friedheim & Bro., 133 S. C., 458, 131 S. E., 620, Syllabus 4 being as follows: “Merchant, who had purchased shoes for fall delivery and had accepted and retained shoes for over a month before returning to seller, held as a matter of law to have *101 accepted them and waived any defect, notwithstanding that ordinarily such question is for jury.” We are of the opinion that respondent, having had every opportunity of checking the deliveries, and having failed so to do, it has waived the right and is es-topped from coming into Court and undertaking to prove a shortage in such deliveries. The testimony shows such gross negligence and gross carelessness on the part of respondent that this Court, even as to- fraudulent acts on the part of appellant’s agent, which were made possible by the gross negligence and carelessness of respondent, does not hesitate to invoke the doctrine of estoppel by waiver. A majority of the Court being of the opinion that appellant’s Exception 9 should be sustained, it becomes unnecessary to discuss the other exceptions. However, it should be stated that the Chief Justice concurs in a reversal of the case, and direction of verdict for appellant on exceptions not herein discussed, solely on those raising the question that the evidence of shortages in the delivery of bread, other than the $50.00 admitted, was entirely .too speculative and uncertain to be able to base a verdict or judgment thereon. It is the judgment of this Court that the judgment appealed from be reversed, and the case is remanded to the Court from whence it came with instructions to enter judgment in favor of respondent against appellant in the sum of $50.00. Mr. Chiee Justice StabeEr and Messrs. Justices Bonham and Eishburne concur.