37 S.C. 239 | S.C. | 1892
The opinion of the court was delivered by
This action was tried before his honor, Judge Hudson, and a jury, at the October term, 1891, of the Court of Common Pleas for Union County. After verdict for defendant, judgment was duly entered. Plaintiff now appeals, raising four classes of exceptions. 1. Error of Circuit Judge in not sustaining plaintiff’s demurrer to paragraphs 3, 4, 5, 6, and 7 of defendant’s answer, because they failed to state facts sufficient to constitute a defence. 2. Error of Circuit Judge in not holding, on a request therefor, that the acceptance sued on here was a valid and binding acceptance, and rendered the defendant liable as an acceptor. 3. Error of Circuit Judge in ■not holding that if the acceptance was a conditional' one, that then the only question for the jury was, “Has the condition been performed?” 4. Error of the Circuit Judge in his charge to the jury by an expression of his opinion as to the facts.
2. This and the succeeding exceptions have raised very nice points of law, not only of interest because of the legal learning involved in their consideration, but also because of their belonging to that branch of the law that affects society in every quarter alike, viz., the law relating to commercial transactions.
Nothing was done by Greene, the plaintiff, until the 18 October, 1888, at which date, Duncan being in the telegraph office at Greenwood, Greene again applied to him to help him secure his debt. Duncan, in reply, stated he would do any thing he could to help him. Thereupon Greene telegraphed to Sharkey in these words: “Can’t you wire Mr. Duncan to pay me three hundred dollars? I am in trouble. Please answer at once.” Sharkey on same day telegraphed Greene: “Tell Duncan to pay you three hundred dollars for me.” When this telegram was shown Duncan, he told Greene: “It is a matter of course that I cannot pay you any money until Mr. Sharkey finishes the building; Sharkey is not a responsible man, and I have no, guarantee that he will ever finish those buildings. I will: promise you this much: that when I accept this order, under • the conditions on which I will accept it, I will never pay Mr.. Sharkey another cent until those buildings are completed; it makes no difference what may be the demands that will be made.” Thereupon Duncan, the defendant, wrote, on the back of the telegram sent to Greene by Sharkey,- these words: “Whenever Mr. Sharkey finishes his contract for the'building of my two stores in the town of Greenwood, I will honor the within order.” Sharkey was told by Duncan what he had done. Sharkey requested an advance by Duncan: of $25, so
Sharkey.never touched the work afterwards, and upon the written demand of Duncan, accompanied by a notice, that if Sharkey failed to do so within a specified time, he would let the completion of the building to some one else, Sharkey failed and refused to complete the work. Hence, Duncan consulted others, with a view to having the work completed according to the specifications adopted by Sharkey. He was informed that the work could not be completed under Sharkey’s contract, in view of the poor work of Sharkey, and the balance of the work to be done, at less than $3,000. This Duncan refused to do, but by curtailing the work contemplated in his contract with Sharkey, he (Duncan) got another contractor to finish the work for $650, which was done, and paid for by Duncan. Duncan had paid Sharkey up to 18 October, 1888, $4,060. He also paid $200 for material used by Sharkey, making his payments between $4,900 and $5,000, while his contract with Sharkey only called for an aggregate payment of $4,825.
The plaintiff in his complaint set out the employment by Duncan of Sharkey; the fact that plaintiff furnished some material to Sharkey; the application of plaintiff Greene to Duncan to pay plaintiff’s account against Sharkey; all the telegrams above recited; that, on the 18 October, 1888, Duncan had $800, or more, in his hands, belonging to Sharkey; that Sharkey, or some one for him, had long since finished Sharkey’s contract for the building in question; that Duncan refused to pay the order. In his answer, the defendant admitted his contract with Sharkey; all the telegrams and the acceptance of the order in the language complained; denied that Sharkey had ever completed the contract; alleged its completion by himself; denied that he, on the 18th October, 1888, owed Sharkey $800, and denied that, at the date of the suit, he owed Sharkey anything; and also denied his liability to pay the order.
It must always be borne in mind that the plaintiff, on the 18th October, 1888, elected to take the written acceptance of Duncan. Hot only so, but he has complained upon the order of Sharkey with the qualified acceptance by Duncan endorsed thereon. It seems to us that if he had chosen to rely as his cause of action against Duncan upon Duncan’s telegram of the 12th of October, agreeing to pay the order if obtained at once,
After a careful consideration of this point in the appeal, we conclude that the Circuit Judge committed no error here. A Circuit Judge must make his charges on propositions of law have reference to the issues involved in the case before him. As it has often been held, it is no part of his duty, when he comes to charge the jury, to embrace deliverances by him on abstract or theoretical propositions of law in no wise applying to the issues before him. It is perfectly competent for him, if he regards any requests to charge to belong to this last category, to decline to consider them. Of course, if he should err in his judgement in these particulars, he would be reversed here on appeal.
The 10th ground of appeal complains that there was error in this particular in this part of the judge’s charge: “Then, the fundamental inquiry is, did Mr. Sharkey complete the building according to his contract? Sharkey says he did not; he says he went off and left it. That ought to be good evidence on defendant’s side. Mr. Duncan says he did not do it, Mr. Wells says he did not do it, and there is no Witness that says he did. If he jumped his contract, quit his contract, and did not complete it, then one of the fundamental terms or conditions of acceptance there is gone.” If there was no testimony opposed to such failure of Sharkey to complete the contract, we are at a loss to see where was any disputed matter of fact in issue between the parties. Here all the testimony was on one side. Such being the condition of this matter of complaint, let us turn to the next in order.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
One of the plaintiff’s exceptions was: “Because it was error to charge the jury that the action was brought upon the acceptance alone, which was endorsed upon the order; said action being brought upon all the telegrams set out in the complaint, as well as upon the acceptance endorsed on the order.”