Jowers v. Dysard Const. Co.

• Decision Date: 11 November 1919
• Docket Number: 10289.
• Citation: 100 S.E. 892,113 S.C. 84
• Parties: JOWERS v. DYSARD CONST. CO.
• Court: South Carolina Supreme Court

100 S.E. 892

113 S.C. 84

JOWERS v. DYSARD CONST. CO.

No. 10289.

Supreme Court of South Carolina

November 11, 1919

Hydrick Watts, and Gage, JJ., dissenting in part.

Appeal from Common Pleas Circuit Court, of Richland County; R. W Memminger, Judge.

Action by J. M. Jowers against the Dysard Construction Company. Judgment for plaintiff, and defendant appeals . Reversed, and new trial ordered.

Nettles & Tobias, and J. Fraser Lyon, all of Columbia, for appellant.

W. N Graydon, of Columbia, for respondent.

FRASER J.

The respondent in his argument on appeal makes the following statement of the facts:

"J. M. Jowers made a contract with the Dysard Construction Company to build certain manholes and flush tanks in the city of Columbia. Dysard Construction Company had a contract with the city of Columbia to build these things and hired Jowers to do certain parts of the work. The contract was in writing and specifically stated the price of the manholes and flush tanks as so much per foot. The testimony showed there were 84 manholes and 173 flush tanks to be built.

Jowers commenced work on the contract and bought a mule, and wagon, cement, brick, and other material, and built four manholes and eleven tanks, when the defendant drove him off of the work and refused to allow him to finish the contract. The plaintiff then commenced this action, and demanded judgment for the sum of $1,674 damages for breach of the contract and $96.91 for work already done.

He expressly sought damages for the profits he alleged he would have made on the work, basing his estimate on the amount he had made on the work already done.

The answer of defendant was a general denial and an allegation that plaintiff had voluntarily abandoned the work and that it had paid him for the work already done."

The judgment was for the plaintiff, and the defendant appealed upon eight exceptions.

I. The first three exceptions complain of error in refusing a nonsuit as to separate items of the account. These exceptions cannot be sustained, as there is no provision for a nonsuit as to items of an account, or separate elements of damages. The remedy is a request to charge that the objectionable items and elements of damage are not recoverable.

II. The next objection is that the witness T. K. Legare was not allowed to answer the question, "Was Jowers' work satisfactory to your inspectors and yourself?"

The witness was the city engineer. The plaintiff, when on the stand, said:

"I knew the work would be under the city engineer, and that his inspector would check me up and report to the city. I knew the work would have to come up to city specifications. My work was satisfactory to the city and its inspectors."

The contract of the plaintiff and defendant was a subcontract made in subservience...