Gill v. Ruggles
81 S.E. 519
S.C.
1914
Check Treatment

The opinion of the Court, was delivered by

Mr. Chief Justice Gary.

This is an action to recover the sum of $35,000 and interest, alleged to be due the plaintiffs by the defendant.

*289 The complaint contains two causes of action, which will be reported, omitting paragraphs numbered 1, 2, and 8"of the first cause of action, and 1 and 2 of the second cause of action. The jury rendered a verdict in favor of the plaintiffs for the full amount claimed, and the defendant appealed upon exceptions, which will likewise be reported. The agreement introduced in evidence by the defendant, dated the 23d of December, 1908, will also be reported

1 First, second, and third exceptions: These exceptions assign error on the part of his Honor, the presiding Judge, in allowing the plaintiffs to introduce certain testimony, to which the defendant made objection, on the ground that it tended to vary and contradict the written instrument hereinbefore mentioned. The respondent’s attorneys contend that these exceptions do' not point out with definiteness the testimony to which the defendant objected, and are, therefore, too general for discussion; also that they should not be considered, for the reason that the grounds of objection were not stated. When it appears, as it does in this case, that the Court and the attorneys understood the objection to' continue throughout the trial, it was not necessary to' repeat it every time similar testimony was offered.

2 Parol testimony is admissible to show a different consideration from that expressed in a written instrument when it was intended as a mere recital, as this would not otherwise change the terms of the written agreement; but it is not admissible when the consideration is contractual, as in that event such testimony would alter the force and effect of the writing in other respects. The authorities upon which the appellant’s attorneys rely fully sustain this proposition.

By reference to the contract between said parties, dated the 23d of December, 1908, it will be seen that the sum of $375,000 was agreed upon as the price for the timberlands, and that the defendant,' Ruggles, agreed to furnish that *290 amount and perfect the said purchase upon certain conditions; that said timberlands were to be conveyed to Ruggles, who agreed to pay the consideration of $375,000, and take the title to said property; that the parties, to- the contract were thereupon to proceed to the organization of a corporation, and in such organization, provide for two classes of stock, preferred and common; the preferred stock in the organization was to bear 6 per cent, per annum cumulative dividends to cover the cash investment of said property, etc., for which the said 'Ruggles was to furnish the money 1, as hereinbefore stated. There was a provision that the 'common stock should be divided as. follows: To the said Ruggles and his nominees, 60 per cent, thereof, and to the said Gill and Reib and their nominees, 40 per cent, thereof. Upon the organization of the corporation Ruggles. was to. convey the property over to it, and the stock was to' be issued and divided in the manner just stated.

It will thus be seen that the price of the timberlands, and by whom it was paid, determined the amount of preferred stock, and to whom it should be issued, and that the manner in which the corporation should be organized and controlled was dependent upon these two’ facts. The parol testimony tended to alter, vary, and contradict the written agreement in these material respects. The exceptions are therefore sustained.

3 Fourth exception: In the second cause of action it is alleged that the plaintiffs paid the sum of $25,000 on the purchase price of said timberlands. Testimony in response to- this allegation was admissible, and it was not rendered incompetent by reason of the failure to allege other allegations. Objection- to the introduction of testimony for the purpose of proving’ allegations that are in the complaint is not the appropriate remedy for determining whether the second cause of action is demurrable, on the ground that it fails to state facts sufficient to constitute a cause of action.

*291 4 Fifth exceptionIt has not been made to appear that the ruling was prejudicial. Therefore the question whether it was erroneous is merely speculative. This exception is overruled.

5, 6 Sixth and seventh exceptions: These exceptions cannot be sustained, for the reason that, even if testimony tending to prove the allegations of a complaint is erroneously ruled to be competent, the proper remedy is to appeal from the erroneous ruling as to the admissibility of the testimony, and, if the appeal is sustained, a new trial will be granted; but this Court will not order a non-suit.

7 The remaining questions cannot be considered, for the reason that they refer to facts to be found elsewhere than in the exceptions themselves, and, therefore, are insufficient in form. Jumper v. Bank, 39 S. C. 296, 17 S. E. 980; Holzclaw v. Green, 45 S. C. 494, 23 S. E. 515; Tucker v. Railway Co., 51 S. C. 306, 28 S. E. 943.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.