54 S.C. 314 | S.C. | 1899
The opinion of the Court was delivered by
The plaintiffs bring this action to- recover from the defendants a specified amount claiming to be due under a contract, a part of which is in writing, supplemented by certain parol testimony set out in the “Case.” The written instrument relied on as a part of said contract reads as follows: “Chester, S. G, 5th July, 1892. Re. Mary F. McCrady vs. Allen Jones et al. With the consent and at the request of all the counsel in this cause, I, the undersigned, agree to bid off the lands as follows : (1) The water power tract (544 acres), at $13,578. (2) The balance of the lands, less the house tract of 562 acres (to be
The parol evidence relied on to supplement the agreement evidenced by the written instrument above copied was as to what occurred at a conference of the parties, which will hereinafter be more particularly referred to, which was held on the day of sale, just before the sale, culminating in the signing of the said written instrument. The land was sold on the 5th of July, 1892, and bid off by Mr. Spencer in accordance with the terms of the written instrument above set forth. Matters remained in this condition until the 3d of November, 1892, when'Mr. Spencer, as attorney of Sloan & Son, received from the clerk of Court, who had made the sale, one-fifth of the net proceeds of the sale of the water power tract, and applied the same to the two' claims mentioned in the written instrument aforesaid, held by him as attorney for Sloan & Son, leaving a balance due on said claims amounting, at that date, to- $1,305.35. Subsequently, and before the commencement of the action, the defendants, London, Robertson and Jones, each paid to Spencer one-fifth of said balance, leaving a balance of $522.14, and this action was brought to recover that balance, with
The exceptions are numerous, some of them divided into several subdivisions, and instead of considering them seria
Before proceeding to consider these questions, it may be well to give some account of the transactions out of which this controversy arose. While there is a direct conflict in the testimony as to some of the facts, there are others about which there seems to be no dispute. The lands referred to in the written instrument, set out in this opinion, were ordered to be sold at public outcry by the clerk of the Court of Common Pleas for Chester County — see McCrady v. Jones, 36 S. C., 167 — the water power tract to be sold separately, and the remainder of said land to be sold in such parcels “as may be most conducive to the interests of the parties entitled.” Accordingly, the clerk had the lands, outside of the water power tract, and the home tract, divided into' a number of smaller tracts. Before the day of sale a syndicate, composed of the five persons named as defendants in this case, was formed for the purpose of buying the property at a price not exceeding the sum of $30,000, with a view to developing the water power. On the day of sale, 5th of July, 1892, all of the members of this syndicate, excepting Mr. Pelzer, who was represented by Mr. Courtenay, together with Mr. Spencer, who represented the plaintiffs, as creditors of one of the parties interested in the lands, Mr. Wilson, who represented certain other creditors, Mr. Bacot, who represented Mrs. Henrietta C. Davie, and Mr. McCrady, who, as we understand it, represented his wife’s interests in the land, met at Chester C. H., where the sale
(c)Exceptions n, 12 and 13 relate to objections to the testimony of Mr. Spencer as to the time when, and the reason why, he withdrew his refusal to assign the bids which he had made for the defendants. The testimony shows that Spencer had refused to assign these bids because the appellant had taken the position that, according to his understanding of the agreement, he was under no obligation to pay anything more than he had already paid; but when he was informed by his clients, through the telegram above referred to, that they were satisfied, the ground of his objection was removed and he assigned the bids. How this testimony can' be regarded as incompetent we are at a loss to perceive. These exceptions are overruled.
(e) Exception 25, imputing error in excluding the letter of Pelzer to Courtenay, of 9th October, 1897, cannot be sustained. We do not find any letter of that date mentioned in the “Case,” except that the contents of such a letter was offered as a part of a conversation brought out by plaintiffs, and ruled inadmissible, which was clearly right, as it was not a part of any evidence offered by plaintiffs; of course, when it was first offered to prove the contents of such letter, the letter itself was the best evidence of what it contained; and besides, its contents were brought out without objection, as Mr. Courtenay was permitted to state a conversation he had with Mr. Pelzer, giving his reasons for paying up.
Exceptions 30 and 31, relating to the question whether, in this action, a verdict against appellant alone could be sustained, have likewise been disposed of by what has been said as to the question'of whether the defendants contracted each ¿or the whole amount of the deficiency, or only for his one-fifth part thereof. The determination of that question depended upon the view which the jury might take of the parol evidence, as the written instrument threw no light upon that question; as to which the jury were properly instructed.
Some question seems to have been made in the Court below as to the statute of frauds, and appellant, by his 10th request, desired a charge upon that subject, which was complied with, and, as we understand it, such charge was satisfactory to appellant. At all events, we do not find in the exceptions any complaint made as to that part of the Judge’s charge, and hence there is nothing for us to decide as to that matter.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.