Chandler v. People's Nat. Bank of Greenville

• Decision Date: 02 August 1927
• Docket Number: 12242.
• Citation: 138 S.E. 888,140 S.C. 433
• Parties: CHANDLER v. PEOPLE'S NAT. BANK OF GREENVILLE.
• Court: South Carolina Supreme Court

138 S.E. 888

140 S.C. 433

CHANDLER v. PEOPLE'S NAT. BANK OF GREENVILLE.

No. 12242.

Supreme Court of South Carolina

August 2, 1927

Appeal from Common Pleas Circuit Court of Greenville County; M. F Ansel, Judge.

Action by W. A. Chandler against the People's National Bank of Greenville, S. C., as executrix of the estate of C. F. Dill deceased. Judgment for defendant, and plaintiff appeals. Reversed, and cause remanded for new trial.

J. M Richardson and W. B. McGowan, both of Greenville, for appellant.

E. M Blythe, of Greenville, for respondent.

BLEASE J.

This suit was tried in the county court of Greenville county, with Hon. M. F. Ansel, county judge, presiding, and resulted in a verdict for the defendant. The plaintiff seeks here a new trial.

The action was on an alleged parol contract, to which there was no witness save the plaintiff and the president of the defendant bank. The allegations of the complaint, necessary for an understanding of the issues in this court, are to the following effect: The defendant bank, of which Mr. W. C. Beacham is president, is the executor of the will of C. F. Dill, deceased. The estate owned the "Skelton building," in the city of Greenville. The executor had power, under the will, to sell and convey the real estate. Plaintiff is a real estate broker, and defendant engaged him to sell the real estate mentioned at the price of $70,000, upon the agreement that plaintiff was to receive 2 1/2 per cent. of the sale price as commissions for his services. The building was sold at the price stated, but defendant declined to pay the commissions.

The defendant's answer, except as to formal matters, was a general denial.

The presiding judge refused defendant's motion for a nonsuit and for a directed verdict. In a brief, but clear, charge, which correctly stated the law of the case, he submitted to the jury the only two issues in the cause, which, in our language, were as follows: (1) Was there a contract, as alleged by the plaintiff, between the parties? (2) Was the plaintiff, as broker, during the continuance of his agency, the efficient or procuring cause of the sale made by the defendant to the purchaser? There is no appeal from the charge.

The main controversy in the case was the question whether the plaintiff's version of the contract was true, that he was employed as a broker to sell the property to some third party for $70,000 and should receive a commission of 2 1/2 per cent. for his services, or whether Beacham's version of it was true, that the property was offered to the plaintiff, as a purchaser, at $70,000, and that if he bought he would be allowed a discount, or "allowance," as it was termed by Beacham, of 2 1/2 per cent. The plaintiff testified positively to his version, and what is quite material to the present inquiry, that when he opened negotiations with Beacham, the latter stated to him that he had listed the property with several other brokers upon exactly the same terms as he proposed and agreed to list it with the plaintiff: $70,000, one-fourth cash, balance on easy terms, and 2 1/2 per cent. commissions to the broker making the sale.

Beacham testified, with equal positiveness, that he had never engaged the plaintiff as broker to sell the property, but made the same arrangement with him that he had made with several other real estate brokers, that he would sell the property to them (severally) at $70,000, and allow a deduction of 2 1/2 per cent. The testimony pertinent to the present inquiry is that he had made the same contract with the other brokers as he made with the plaintiff.

It thus appears, we think without controversy, that the contract with the plaintiff, whatever it was, is conceded to have been in the identical terms of the contracts made severally with the other real estate brokers with whom Beacham listed the property, and the question is whether the testimony of these other real estate brokers as to what were the terms of their contracts with Beacham has any probative value in determining the vital issues in the case as to what were the terms of the contract between the plaintiff and Beacham.

The exceptions of the appellant, only two in number, charge error in the exclusion of testimony offered by him in presenting his case in chief.

The first exception relates to proffered testimony on the part of two witnesses, Mr. A. H. Pyron and Mr. W. T. Henderson. When Mr. Pyron, a real estate broker, was on the stand, he was asked for plaintiff if Mr. Beacham offered the Skelton building for sale through him. There was objection on the part of the defendant on the ground that even if defendant employed other real estate men, or made other contracts regarding the sale of the property, the testimony of the witness was irrelevant. During the course of argument as to the propriety of the question asked, the attorney for the plaintiff made this statement: "We can prove he had made similar contracts." The defendant's attorney urged that the plaintiff was confined to the allegations of his complaint as to the employment of the plaintiff by the defendant, and that no testimony as to other or similar contracts was competent. The presiding judge indicated that he would rule in favor of the defendant. Plaintiff's attorney then stated that he would ask another question to get it in the record. That question was this: "Did Mr. Beacham or any other officer offer you a commission of 2 1/2 per cent. if you sold this Skelton building?" There was objection on the grounds already made, and on the further ground that the question was leading. The court stated that the question could be put in the alternative, but sustained the objection.

Following the offer of the testimony by Mr. Pyron, plaintiff called Mr. Henderson, also a real estate broker, as a witness. Plaintiff's counsel stated this witness was called for the purpose of being asked the same questions he had propounded to Mr. Pyron. Defendant's attorney objected on the same grounds made by him formerly. The court ruled the questions improper.

The appellant's attorneys insist here that the testimony should have been allowed. At the outset, we are confronted with the position of the respondent that, even if there was error in declining to allow the witnesses to answer the questions put to them, there can be no reversal, because the record before this court does not show what the testimony of the witnesses would have been. Two cases, Roach v. Williams, 109 S.C. 29, 95 S.E. 120, and Bowling v. Mangum, 122 S.C. 179, 115 S.E. 212, are cited as authority for the proposition advanced.

The holding in the Roach Case, referred to by respondent, where the opinion was written by Mr. Justice Fraser, was this:

"The appellants have made an error of practice in that they failed to state in the case what they expected to prove by the excluded evidence. It appears only in the argument. This court can make no finding based upon what appears in argument and not in the case."

In the Bowling Case, the language of Mr. Justice Cothran, who wrote the opinion of the court, was as follows:

" The exception must be overruled upon the further ground that the record does not show what the testimony would have been."

We agree with the principle of practice that this court should not reverse a cause for failure to admit testimony, unless the record on appeal to this court shows fairly what the rejected testimony would have been. We think, however, that the transcript of record in the case at bar sufficiently sets forth the testimony the plaintiff expected from the witnesses, Pyron and Henderson. The witnesses could not have answered the questions propounded to them, after the ruling of the court that they were improper, without subjecting themselves to the penalties of contempt. One of the plaintiff's counsel, during the examination of Mr. Pyron, made a statement to the court, as shown before, of what he expected to prove by this witness. A little later, while yielding to the ruling of the judge, he asked another question, as stated by him to be, for the purpose of getting it into the record. When Mr. Henderson was called, plaintiff's counsel, in a very proper manner, without endeavoring to be too insistent, and without any intention of unduly prolonging the trial, stated to the court that the witness was produced for the purpose of asking him the same questions that had been formerly propounded to Mr. Pyron. Upon this statement, defendant's counsel entered his same objection, and the court entered his same rulings.

We think perhaps the better practice in matters of this kind is for the jury to retire and for the examination of the witness to be had, so that the exact testimony desired to be introduced may appear in the record of the trial and be presented to this court, in case of appeal. This procedure, however, takes time, and will result very often in extending the length of trials. These matters must be left very much, at all times, to the discretion of the trial judge. It seems to us it should be entirely sufficient, however, for the purpose of passing upon the relevancy of testimony offered and disallowed, for the court to have in the record of trial the statement of a member of the bar, in good standing, as to what he proposed to prove by the witness, made at the time of his presentation of that witness. Accordingly, we find ourselves unable to agree with the position of the respondent.

We concede that if there had been no connection in the testimony between the contract made with the plaintiff and the contracts made with the other brokers, the terms of these other contracts could not possibly have thrown any light upon the question at issue as to what was the contract between the plaintiff and Beacham; the testimony would...