53 S.C. 51 | S.C. | 1898
The opinion of the Court was delivered by
The plaintiff brought this action to recover thevalueof services rendered byand through him to defendant’s intestate for a period of nearly three years — from December, 1891, up to the time of his death, in November, 1894 — under an agreement with intestate, in which no particular price was stipulated for, but simply
The defendant, in his answer, sets up five separate defenses: 1st. That the services were rendered under a special contract that plaintiff was to be paid $7 per month, and allowed board for himself and family, by the intestate, which contract, defendant alleges, has been fully performed by said intestate. 2d. Defendant denies that the services rendered by plaintiff were worth anything like the sum claimed in the complaint, and- he alleges that the services sued for have been fully paid for and discharged. 3d. The third defense is stated in the following language: “That he is informed and believes that immediately after the death of said Myers, said Horne began to make exorbitant demands on the heirs at law of said Myers, and claim heavy accounts for services rendered, and threaten litigation; and the said heirs at law, being unable to ascertain then the conditions on which plaintiff was employed and the condition of the estate, and being frightened at the threat of litigation, entered into an agreement with said Horne and his wife, a copy of which is hereto attached, marked ‘Exhibit A,’ and he agreed to receive the share provided for them in full settlement of all claims, and he has received under said agreement $416 from defendant, who, although no party to said agreement, under advice, recognized and acted under it, the heirs at law being all sui juris, and parties to the same, although the provision in the same was largely more than could possibly have been due said plaintiff, and was obtained by his threat of litigation, and the timidity of the heirs at law. Said plaintiff is also in possession of a valuable tract of real estate under said agreement, and is not entitled to anything, except what he may get thereunder, until said agreement is fully rescinded and he return to the
It seems that the intestate, Thomas S. Myers, who lived in the State of North Carolina, not far from the line dividing that State from South Carolina, had, in the course of his life, accumulated a considerable estate, estimated to be
The errors imputed may be divided into the following classes: 1st. In the rulings as to the admissibility of testimony. 2d. In refusing the motion for a nonsuit. 3d. In the charge and the refusals to charge.
Exceptions 45 and 46 must be overruled. Surely the plaintiff had a righr to prove what passed between the defendant and himself, as well as the suggestion made to him by defendant’s counsel; especially when it appears that such testimony was brought out for the purpose of showing-why plaintiff did not stand to the agreement upon which defendant relied in this action.
We are unable to find any basis in the “Case” for exception 47, for it nowhere appears that the Circuit Judge refused to allow the plaintiff to be cross-examined as to the property he had at the beginning of the year 1891. That exception is, therefore, overruled.
Exception 48, complaining of error in allowing the witnesses therein named to prove that Thomas S. Myers was an illegitimate, is so manifestly immaterial, that, but for our respect for counsel, we would be justified in characterizing it as frivolous. The whole case on both sides proceeded upon the theory that Myers was an illegitimate, and surely the reception of formal evidence to prove that fact cannot, in any sense, be regarded as error of law.
Exceptions 50 and 51 impute error in allowing the plaintiff, when examined in reply, to testify what he had told several witnesses, who had been examined for the defense for the purpose of proving what he had told them as to the compensation which he was to receive for his services. This testimony was manifestly in reply, and was competent to explain what he had said to defendant’s witnesses. These exceptions are overruled.
Our' next inquiry is whether there was any error in refusing the motion for a nonsuit. The grounds upon which the motion for a nonsuit were based, and the exceptions to the refusal of such motion, rest upon the theory that the claim sued upon had been released by the terms of the agreement hereinbefore referred to as “Exhibit A;” and as we have shown above that such theory cannot be sustained, these exceptions are disposed of by what has already been said.
Exception 52 complains of error on the part of the Circuit Judge in charging the jury, “without further explanation,” that the agreement evidenced by “Exhibit A” was a joint agreement, “in this, as between the parties of the first and second part to said agreement, the agreement was certainly several.” Exactly what the words we have quoted from the 'exception mean, it is difficult to say. But whatever they may mean, we think it clear that the exception cannot be sustained for two reasons: 1st. It is manifest on its face that the agreement is joint; and, 2d. There was no request for any explanation, if, indeed, any was needed or was proper.
While we have not deemed it necessary- to mention specifically each exception, we have carefully considered all of them, and are unable to find any that should be sustained.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.