[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 126 November 23, 1926. The opinion of the Court was delivered by This action was begun on the 11th day of May, 1925, by the service of the summons and complaint based upon an alleged breach of implied warranty. The complaint alleged both express and implied warranties, but, upon motion of defendant's attorneys, plaintiff was required to elect upon which warranty she would proceed to trial. She elected the implied warranty. The answer was duly served, setting forth both a defense and a counterclaim, to which the plaintiff replied in due time. The cause came up for trial before his Honor, Judge W.H. Townsend and a jury, at the summer term of Court, 1925, and resulted in a verdict for the plaintiff in the sum of $400. During the course of the trial, *Page 136 two motions were made by the counsel for the defense, one for a nonsuit and another for a directed verdict, both of which were refused.
Upon rendition of the verdict, a motion for a new trial was made by defendant which was denied by the Court, whereupon judgment was entered, and this appeal was taken.
Plaintiff contends that defendant, appellant, sold to the respondent an automatic electrical piano, in June, 1920, for which respondent agreed to pay $1,750, and executed a title retention agreement securing her notes, which she gave in payment of the purchase price. When the piano was delivered, it would not give satisfactory service; respondent made complaint to appellant, also to appellant's agent and collector. Appellant sent his repairman to work on the piano several times. He would assure respondent that the piano only needed adjusting. After keeping the piano two months, respondent offered to return the piano to Mr. Moore, appellant's repair man and collector. Before leaving Camden in March, 1921, respondent complained to appellant personally, and offered the piano to him, if he would return half the money she had paid on it. Appellant and his repair man and collector would assure respondent that the instrument would be adjusted. The piano was shipped to Greenville in 1921, and moved from there to Columbia in 1923. The piano was operated by putting a coin in the slot. Respondent made several attempts to place the piano at amusement places on a commission, but in each instance the piano would fail to operate satisfactorily. Respondent paid $1,552.25 on the piano; no payments were made after 1923; appellant repossessed the piano in December, 1924. The respondent had considerable dealings with the appellant prior to the purchase of the piano. The above mentioned action was begun five months after the piano was repossessed. The following questions are raised by the appeal: *Page 137
1. Construction of the complaint: Does it contain a cause of action independently of the allegations in paragraph 7, which are stated on information and belief? The first question is raised by exceptions 1 and 2. The cause of action stated in the complaint was based upon the breach of the implied warranty in the sale of an automatic electrical piano, as is alleged in paragraphs 4 and 5 of the complaint. The allegations contained in paragraph 7 of the complaint, referred to in appellant's brief, as the basis of the said cause of action, are made upon information and belief; and the cause of action stated in the balance of the complaint is sufficient to go to the jury; there being testimony to support the allegations contained therein. If respondent offered no testimony to prove that this piano was one of those designated in paragraph 7 of her complaint, this would not preclude her from offering testimony that this particular piano, purchased by her from appellant, was defective and did not give service, as is alleged in the other paragraphs of her complaint.
2. Can an action be maintained for damages for the breach of an implied warranty after the buyer has parted with possession of chattel either by sale or repossession by the seller? The second question is raised by exceptions 2 and 3. At the time this suit was commenced, appellant had the piano in his possession. The fact that respondent did not have the piano in her possession at the time the suit was commenced does not preclude her from maintaining an action for damages for the breach of implied warranty; whether the buyer has sold chattels in the regular course of trade or exchanged them for others makes no difference, as a showing that the buyer has assumed payment is sufficient. 66 So., 848. If respondent were bringing this action for the rescission of the contract of sale, she would have waived her tender and offer to return the chattel, by selling same, for then it would be beyond her power to return the piano, if rescission were allowed and her payment *Page 138 on the purchase price returned. Yancey v. LumberCo., 133 S.C. 369; 131 S.E., 33. But this action is for damages for the breach of the implied warranty; the buyer has given her note in payment, and can set up damages for the breach of the implied warranty as a defense, if sued S.E., 547, that a buyer is not divested of his right of action for damages for the breach of the implied warranty in a separate action. Rawls v. White, 127 N.C. 17;37 S.E., 68. It was held in Mauldin v. Milford, 127 S.C. 508;121 S.E., 547, that a buyer is not divested of his right of action for breach of warranty of title, by a resale of the property. He has waived his right to rescission, but can bring action for damages for breach of implied warranty.
3. (a) Is it necessary for purchaser to complete payment on contract of sale before commencing action for damages for breach of the implied warranty?
(b) Does buyer waive right of action on the implied warranty by continuing to make payments, after notifying seller that piano was "shot," and would not play satisfactory, and offering to rescind the contract, which seller refuses to do?
These two questions, raised by exceptions 4 and 7, can be taken together, as they present conflicting propositions of law. The case of Williamson Heater Co. v. PaxvilleSchool District, 102 S.C. 295; 87 S.E., 69, is directly in line with the case before the Court; the facts in that case are similar to those in the case at bar. The Court held that the Court could not have declared as a matter of law, that the failure of consideration had been waived; that the purchaser of the heating plant could pay a note for the purchase price and bring suit for breach of a guaranty of the plant, or set up such breach in an action on the notes. Kirven v.Chemical Co., 77 S.C. 493; 58 S.E., 424, supports the latter holding in the above case. "Waiver is ordinarily a question for the jury, and we do not see that it has become a question of law," authorizing the Court "to declare as a matter of law that the defendants have waived the question *Page 139 of" breach of the implied warranty. Wiggins v. Hunter, Harp. (16 S.C.L.), 80. Actions for the breach of warranty of the soundness of a horse, for the purchase money of which a negotiable note has been given. Held, that the action might be maintained, though the note had not been paid. Parker v. Pringle, 2 Strob. (33 S.C.L.), 242.
"In this State, an action may be brought for a breach of the warranty, without a tender or return of the article purchased; and the same rule applies when the breach of warranty is made a defense under our discount law." CitesCarter v. Walker, 2 Rich. (31 S.C.L.), 40.
4. Was the offer to return property made by buyer in a reasonable time? The fourth question is raised by exception 6. There is testimony that respondent offered to return the piano, and the question of the reasonableness of the time was for the jury. The testimony of the plaintiff, of L.L. Moore, of Wolfe and others, was sufficient to make this matter an issue for the jury, under the pleadings in this case.
5. There was sufficient evidence to support the submission of the issues to the jury and to sustain the verdict found. Exception 8 must be dismissed.
6. Was error committed by the presiding Judge in sustaining plaintiff's counsel's objections to questions asked plaintiff on cross-examination, to wit, questions contained in appellant's exceptions Nos. 9, 10, and 11? The sixth question is raised by the above exceptions. Statev. Houx, 109 Mo., 654; 19 S.W. 35; 32 Am. St. Rep., 686, holds that a witness cannot be cross-examined as to the immorality of his previous life, unless his answers tend directly to prove some issue. It has been held that a witness may be asked whether he has been arrested or indicted, but it would seem that such inquiries would be excluded, since the fact of indictment or arrest is not inconsistent with innocence. The trial Judge has broad discretionary power in approving relevancy of evidence as is held in Southern Co. *Page 140 v. Rice, 122 S.C. 484; 115 S.E., 815. The case of Statev. Hasty, 76 S.C. 105; 56 S.E., 669, holds questions similar to the above are not admissible.
7. Was error committed by his Honor in that part of his charge complained of in appellant's exceptions Nos. 12, 13, and 14, when taken with his charge in its entirety? The seventh question is raised as above stated. A consideration of the following South Carolina cases will show that his Honor's charge as excepted to in the above exceptions, is correct, and that the propositions insisted upon by appellant in his exceptions are not the law in this State. The following cases differentiate between an action for rescission of a contract of sale and an action for damages for breach of the implied warranty of sale and state the rule in this State: Ramsey v. Hill, 92 146;75 S.E., 366; Greenwood Cotton Mills v. Tolbert, 105 S.C. 273;89 S.E., 653, Ann. Cas., 1917-C, 338; Carter Hardenv. Walker, 2 Rich. (31 S.C.L.), 40; Williamson HeaterCo. v. Paxville School District, 102 S.C. 295;87 S.E., 69, cites Kirven v. Virginia-Carolina Chemical Co., 77 S.C. 493;58 S.E., 424; Wiggins v. Hunter, Harp. (16 S.C.L.), 80; Hurt v. Davis, 1 Brev. (4 S.C.L.), 304. The charge of his Honor will be set out in full, and it states the law so well on the questions raised, and with such precision and clearness, that it may well be termed a model.
8. Was error committed by his Honor in that part of the charge complained of in appellant's exception No. 15? If so, is same not in response to the issue raised by the pleadings so as to be prejudicial? Has appellant's counsel waived right to complain of the Court's instruction after failure to request additional instructions in apt time? said instruction having been given upon following request of appellant's counsel: "Mr. De Loach: Your Honor, the defendant has a right to take the piano back under his mortgage."
The eighth question is raised by exception 15. The question *Page 141 of whether appellant had a right to repossess piano was not raised by the pleadings. The complaint states a cause of action for damages for breach of implied warranty in the sale of the piano; appellant's answer set up a counterclaim for $352.95, alleged balance due on the purchase price. The request to charge on page 25 of the case is not in response to the issues in the case. It is as follows:
"Mr. De Loach: Your Honor, the defendant had a right to take the piano back under his mortgage.
"The Court: After the condition was broken, failure of the plaintiff to pay the balance of the purchase money due, the defendant had a right to take back the piano, unless the plaintiff was then entitled to recover more damages than would have settled the balance due on the purchase money."
Appellant's counsel waived right to complaint of the Court's instruction, after failure to request additional instructions in apt time. Watson v. Sprott, 134 S.C. 367;133 S.E., 27.
Upon breach of implied warranty, buyer could hold piano against seller who had title retention agreement of sale until piano was put in condition. Millensonv. Lamp, 99 W. Va., 539; 130 S.E., 137. In this case the piano was in appellant's possession, and respondent was not asking for the return of piano; the instruction that the presiding Judge gave, at appellant's counsel's request taken with his charge, in its entirety, was the correct rule for the jury to be guided by.
We see no error in the trial; the pleadings, testimony, and charge of the Judge fairly submitted the question for the jury, and there was no error in the submission of the case, nor in a refusal to set aside the verdict.
The judgment of this Court is that the judgment of the circuit Court be affirmed.
MESSRS. JUSTICES WATTS, BLEASE, and STABLER concur.