82 S.E. 676 | S.C. | 1914
August 26, 1914. The opinion of the Court was delivered by The printed "Case" contains between six and seven hundred pages. It was admitted, at the hearing, that not more than one-third of the matter contained therein is pertinent *454 to the questions presented for decision. Examination shows that, if it had been prepared according to the rules, it could probably have been reduced to from one to two hundred pages. The Court would, therefore, be warranted in dismissing the appeal, without consideration of the merits, because of the violation of its rules. In numerous cases, the bar have recently been admonished about this matter. If these admonitions continue to go unheeded, the Court will be compelled to protect itself by dismissing the appeal, when the "Case" is not prepared according to its rules.
In preparing the "Case," instruments of writing, such as the pleadings, wills, deeds, notes, bonds, mortgages, bills of lading, policies of insurance and the like should not be set out in full, unless the instrument is to be construed; and, even then, only so much of it as is necessary to a proper construction should appear. Ordinarily, it is sufficient to state the substance of such instruments; but, if special consideration of any part is desired, such part should be set out in full, and the substance of the remainder stated. If it should happen, as it sometimes does, that the different parts of an instrument are so dependent upon other, or otherwise so correlated that the whole is necessary to a proper understanding or construction of any part, then the whole instrument should appear. But we often find in the "Case" the whole of a bill of lading or policy of insurance, when only one clause or stipulation is to be considered or construed. Deeds and mortgages are often set out at length, including the probate thereof and renunciation of dower, when the part necessary for consideration could be stated or set out in half a dozen lines. This is not only an unnecessary tax upon the time and patience of the Court, but it is a useless waste of the money of litigants.
Whenever it is necessary to present the testimony to this Court, it should be stated in narrative form, and only the substance of it given, without repetition, omitting all that is *455 irrelevant to the issues to be decided. When the questions and answers are necessary to elucidate the point to be decided, or it is desired to call attention to the exact language of a witness, the same may properly be inserted.
It may be suggested that it is often difficult for counsel to agree as to what is a correct synopsis of the evidence. In such cases, let the Circuit Judge decide between them. If he rules erroneously, his ruling is subject to appeal, to be heard in connection with the principal appeal; and this Court will decide the matter, and impose the payment of costs and disbursements accordingly, for counsel have the right, and it is their duty, to protect their clients against the possibility of having to pay for unnecessary printing as disbursements.
The bar is again warned that the rules of this Court must be complied with in the preparation of the "Cases" for appeal, and that, in future, the Court will feel at liberty to decline to consider any appeal in which the "Case" is not prepared according to the rules.
The facts are clearly stated in the master's report. As will be seen by reference to that report, the master held that the contract between the parties was in writing, and that it consisted of the letters of May 17th and 20th, and so much of the contract between Williams Co. and the railroad company as was applicable to the work undertaken by Twiggs Son, except as to prices and scope of work to be done by them.
The Circuit Court overruled this conclusion, and held, under the authority of Herlong v. Southern States LumberCo.,
His Honor misconstrued the opinion of the Court in the Herlong case. In that case, the language of the letter which was construed to make a previous conversation a part of the *456 contract was as follows: "The administration of the company's affairs to be along the lines which I talked of with you, when at Dunbarton, on Saturday." The Court said: "The talk at Dunbarton was adopted as a part of the contract, and, of course, could be proved only by parol." But, in this case, the letter of May 17th does not refer to the previous conversation as a part of the contract, but the reference to them was for the purpose of confirming and making only so much of them as was included in the letter a part of the contract. The part not included therein was not confirmed, and was, therefore, not a part of the contract. Plaintiffs' letter of the 20th, in reply shows clearly that they so understood the defendants' letter of the 17th, for they said, "yours of the 17th, covering agreements made," etc. If defendants' letter of the 17th had not covered all the agreements made, surely plaintiffs would not have said that they did.
Twiggs Son agreed that they would sign the same kind of contract with Williams Co. as the latter had with the railroad company. In the absence of fraud, accident or mistake, they should not now be heard to say that they are not bound by that agreement, because they did not know or understand the terms of the contract between Williams Co. and the railroad company. It was their duty to ascertain what its terms were before agreeing to sign it. Of course, if Williams Co. misrepresented its terms, Twiggs Son would be bound by it only in so far as its terms were what they were represented to be. But there is no evidence of any such misrepresentation, except in reference to the matter of unloading track material, which was waived by Twiggs Son, and is of no consequence as to the issues now before the Court.
Reason and authority abundantly support the proposition that one contract may be made a part of another by reference to it. In Dunbar v. Ry.,
The next question is: Did the master and Circuit Judge err in holding that, as there were no words in the contract limiting Twiggs Son to payment for excavation within the limits of the roadbed, they should be paid for excavation outside those limits? On this point, the testimony of the expert witnesses as to the meaning of the words of the contract is conflicting, and, while we have been impressed by the able and zealous argument of appellants' counsel, we cannot say that the preponderance of the evidence is against this concurrent finding of the master and Circuit Judge, — especially in view of the following provision in the contract submitted by Williams Co. to Twiggs Son for execution: "Grading will include all excavations and embankments, and will be paid for `one way' only, either for excavation or embankment, according to the largest quantity." The words of the proposed contract are "all excavations," etc. While the words "roadbed measurement" were not appropriate to the contract between plaintiffs and defendants, there is no reason why other words which would have limited payment to quantities within the slope stakes could not have been used.
It follows from what has already been said as to what the contract was, that the Circuit Court erred in overruling the conclusions of the master that plaintiffs were not entitled to pay for surfacing material. The contract of defendants with the railroad company, by the terms of which plaintiffs were bound, expressly provides "that the price for tracklaying and surfacing is to include the providing, delivery, *458 and putting in place all such surfacing material as is required by the specifications."
The other points raised by the exceptions are overruled for the reasons stated by the master, which were concurred in by the Circuit Court.
The judgment of the Circuit Court is modified according to the view herein announced.
