*1 remanded. Reversed JJ., concur. Cureton,
Shaw Legrand Shop, Respondent, BAKER, 17 Joiner d/b/a North W. A. WEAVER, Appellant. 770) (309 S. E. Appeals
Court *2 LeRoy Nettles, Nettles, Reddeck, & Lake Turbeville City, appellant. for
William, Morrison, Jr., Jr., Duffy, and J. Lawrence McG. Charleston, respondent. 28, 1983.
November Judge:
Goolsby, brought this Baker, joiner, A. respondent W. The owner, Weaver, to a boat appellant Legrand against action coun- boat. In a to Weaver’s repairs done payment collect terclaim, sought damages repairs Weaver were because the performed not in a workmanlike manner and because the repairs delayed. were jury Baker, The found favor of appeals. Weaver We reverse and remand for a new trial. presented by sole issue appeal this involves for an sought by additional him in instruction connection with his counterclaim. counterclaim, his answer and alleged Weaver that he
contacted for repairs to make to his boat” but “[Baker] properly perform the work on the in a boat... “[Baker did] workmanlike manner. ...”
Testimony repairs question disclosed at trial were not parties done Baker but rather third who Baker arranged carry dispute developed out the work. A factual regarding responsible allegedly whether Baker was for the shoddy delinquent party repairmen. work of the third arranged Baker testified he party repairmen for the third Weaver, work on the boat as an accommodation and favor to and Weaver repairs testified he relied on Baker to have the done. *3 charged
After the case, court the on the law the counsel, jury’s Weaver’s presence, outside the asked the court charge to principle
... the party obligation that if a has an to party gets another and in turn person some other to discharge obligation, party that getting the the other person discharge obligation responsible to that is for the party discharge obligation failure of the secured to if the they fail to do so. judge request.
The trial the charge refused He believed his covered request. the substance of the additional exception 4, Supreme sole violates Court Rule 6,
Section complete because it does not contain a as- signment spite that, of error. of we have elected to exception dispose consider the and chosen not to on the case grounds sought technical may because the issue to be raised readily appeal be determined and because the is meritorious. Cousins, 19, Sandel v. (2d) (1975). 266 S. C. 221 S. E. 111 agree We with charge Weaver’s contention that the court’s requested did not the embrace additional No 482 liability assignor’s charge dealt with an
portion of the court’s assignee’s performance. an defective Carolina, judge the law” a must “declare In South trial Const, V, (1985). 17 Instruc jury. § See art. to the S. C. however, to the jury, should be confined tions to the supported by by pleadings and the evidence. issues made 330, (1977); Reynolds, (2d) E. 402 268 C. 233 S. Tucker v. S. (1970). Kelly Brazell, 564, 172 (2d) E. 304 Where a 253S. C. S. controlling charge timely involves a request to is made and judge charge principle, trial to legal a refusal Eaddy Beauty reversible error. v. Jackson constitutes 256, 136 Supply Co., (1964). S. C. allegations Express in the answer and counterclaim assigned designated boat duties that Baker had he, assignor, responsi- as remained to others and proper performance required to Weaver for their were not ble charge liability obligate judge to Baker with and to the trial jury regarding assignment principles. Under instruct law, person may simply delegate duty settled contract a fully thereby extinguish liability his to another and own Jr., Murray perform duty. Murray, See John Edward on Assign- 302, (1974); 6 Am. § Contracts at 617 see also Jur. 2d 97, 110, (1963); Assignments § at § ments at 293 6A C.J.S. (1975). assignor assignee’s performance
For the defective obligor just be for his remains liable to the as would performance agent own defective his or or that of servant. Simpson, P. Contracts at 276
Laurence necessarily instruction related to additional counterclaim and raised by the answer and an issue framed alleged failures liability evidence; namely, *4 timely repairs to Weaver’s assignees proper and of to make Indeed, counsel judge Weaver’s boat. the trial conceded that charge and requesting in point” had “a valid the additional “the rejected only erroneously believed that it because he totality charge” requested of the covered the timely was request for a further instruction request for an “addi- it constituted a made because necessary by the proposition[ made tional [court’s] ] (1976);Eaddy of charge.” See C. Code Laws 15-27-100 v. 11, Beauty Supply Co., supra. Circuit Court Rule Jackson requires requests charge writing to be submitted which jury arguments, application, had as in advance of no contends, request made to the here. Goodwin Har- Baker rison, 231 S. 98 S. E. C. the additional instruction involved
Because arising the case out of feature of the substantial assignment pleadings and the evidence and because right of lay at the foundation of Weaver’s claimed principles recovery, prejudicial position for the it was to Weaver’s trial concerning given judge not to have the an instruction request preju- The principles. refusal of the constituted those the case for a requiring error reversal and a remand of dicial tril. new
Reversed and remanded.
Shaw, J., concurs. J., opinion.
Cureton, separate concurs in (concurring): Judge Cureton, supplement it. Opinion,
I the but would concur with court’s paid by him to Complaint claim for monies included a manifestly implicit in party repairmen. It is such third the question existed as to whether Baker was that a inclusion party for whose repairmen of the for the work third liable right collect. work claimed charge made the refusing judge The trial following comments: point in Nettles, you a valid have
“Mr. counsel] [Weaver’s charge totality however, of I regard; believe does it.” cover law principle of apparently agreed with the judge
The trial ade- principle was charged, thought but that the to be asked portion pertinent quately charge. his covered charge is as follows: Judge’s He has filed a counterclaim.
“in the defendant this case was under- work alleges and contends (sic) arrange- under and him plaintiff taken *5 484 agrees to and One who undertakes agreement. and
ment
any
property is liable for
personal
repair an item
resulting
negligent or
from the
damages proximately
repairs
per-
or
in which he makes the
manner
unskillful
if
charge you
regard
in
I
this
the services.
forms
plaintiff to have the boat
with the
contracted
defendant
duty
plaintiff
to exer-
repaired, the
owed
question
in the
of the boat and
due care
cise and use
added.)
Emphais
work undertaken
Plaintiff.”
instructions,
jury may
well have inferred that
these
From
actually
only
performéd at
they
consider the work
need
responsibility
shop
not consider the
of Baker
and need
Baker’s
shop.
arranged
to have done outside his
the work
following pertinent
language is
266 the
88 C.J.S. Trial
as to
purpose
“The
of instructions is
advise
found:
of facts in order that a
applicable
is
to a certain state
what law
be reached.” See
just,
proper
verdict of the case can
fair
(1925).
Hughes,
(309 (2d) 773) E.S. Appeals
Court of