Action for $2,622.13, balance due on open account for automobile tires and tubes sold to the defendant.
It appears that early in 1920 the defendant opened a business as a dealer in tires and tubes. It was established at 1827 Main street in the City of Columbia, for which he paid rent at $60 per month. In March, 1920, he bought tires and tubes from the plaintiff to the amount of $14,173.24, which were delivered, upon which account he has paid $11,551.11, leaving unpaid $2,622.13.
The business was conducted at the place on Main street for 5 1/2 months, and then at another place for 1 1/2 months. At the latter the rent was $125 per month, making a total amount paid out for rent, $517.50; $302.00 was paid for repairs on the building; two cars were bought for salesmen upon which there was a loss of $950, and for gasoline and oil 7 months at $40 per month $280.00; $75 was paid out on an exhibit at an automobile show; and $3,900 in cash was put into the business, which at the end of the 7 months, in the language of the manager, "went broke." The amount of the loss, as above detailed, was $6,024.50.
There was evidence tending to show that the business was organized for the purpose of selling tires and tubes manufactured by the plaintiff; the defendant being appointed state distributor for what was called "Roamer tires and tubes."
The defendant admitted the purchase of the tires and tubes as alleged in the complaint, but alleged that they were *Page 350 so defective that in the $12,000 already paid by him on the account he had paid at least $3,000 more than they were worth; he also set up a counterclaim for $3,000 damages resulting from the breach of the plaintiff's implied warranty of soundness.
There was abundant evidence from which the jury may have found that the commodities sold were defective and practically valueless, uncontradicted by the plaintiff; and their verdict of $3,000 in favor of the defendant upon his counterclaim may well be referred to that finding.
In the most favorable light for the defendant, the evidence of "overhead expenses," as they are termed by the appellant, and as detailed above, was admissible only to support a claim of special damages, which the complaint does not contain. I do not think that under the pleadings and evidence it should have been admitted.