138 S.E. 354 | S.C. | 1927
April 11, 1927. The opinion of the Court was delivered by "This cause was begun by service of summons and complaint on the defendant, American Railway Express Company, on or about the 6th day of August, 1924. In due course trial was had before Hon. W.H. Townsend, presiding Judge, at fall term of Court of Common Pleas for Sumter County, November 27, 1925, and a verdict returned by the jury: `We find for the plaintiff $1,254.16.' Motion for a new trial was duly made and refused, and defendant duly served notice of intention to appeal to the Supreme Court of South Carolina, from the judgment which was duly entered on said verdict."
The exceptions, four in number, which will be reported, complain of error in not granting a nonsuit, directed verdict, and new trial asked for by the defendant, and in admitting in evidence, over objection, the statement of S.S. Leonard, plaintiffs' superintendent, as being a self-serving declaration and hearsay.
It will be observed that there is no complaint as to the Judge's charge and no specific requests to charge on the *549 part of the defendant and no request to his Honor to amplify his charge in any particular.
Most of the grounds of error raised here were not made in the lower Court, and cannot be considered by us. Only questions raised in the lower Court can be considered by us.
No complaint was made as to the matter of estimate made and adopted by Leonard. As to his Honor's refusal to grant a nonsuit or a directed verdict made by the defendant; as to the nonsuit, but one ground was stated, and that was that the check showed that the plaintiff has been paid in full settlement.
The motion for a directed verdict was made on two grounds as follows:
"(1) That the draft for $120 in payment of the watchman's services, and which was marked in full compensation for the damages caused by the delay, was in accord and satisfaction.
"(2) That the only inference to be drawn from the entire testimony was that plaintiff had been paid in full for all damages due to delay."
His Honor committed no error in his ruling. The acceptance of the check was to pay what plaintiff was out for, a watchman. The other work had not been done and was done after that time, the matter was left to Leonard by both parties for settlement, and he made an estimate showing that the appellant was indebted to the respondent in the sum of $1,254.16.
His Honor was entirely correct to leave it to the jury whether the acceptance of the check was given and accepted in satisfaction of the debt. The testimony shows at the time the voucher was given it was impossible to tell the entire extra expenses. There is no exception on the ruling of the Court on this phase of the case. *550
As to the exception alleging error in admitting statement by Leonard: The testimony showed that it was agreed by both parties that Leonard was the agent of both parties to determine the extra expenses. The statement made by Leonard was admissible for the purpose of showing the plaintiffs' claim and also a statement rendered by the agent of both parties in carrying out the purpose of the agency, and, after the testimony of Leonard that the watchman's salary was the sole additional expense, to wit, $120, it was competent for the purpose of showing that Leonard had made a contrary statement in writing.
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES COTHRAN, STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE R.E. WHITING concur.
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