Cape Fear Lumber Co v. Matheson.*

• Decision Date: 11 January 1904
• Citation: 69 S.C. 87,48 S.E. 111
• Parties: CAPE FEAR LUMBER CO. v. MATHESON.*
• Court: South Carolina Supreme Court

48 S.E. 111

69 S.C. 87

CAPE FEAR LUMBER CO.

v.MATHESON.^*

Supreme Court of South Carolina.

Jan. 11, 1904.

SPECIFIC PERFORMANCE—CONTRACT.

1. Where a party to a contract under seal executed it without reading it, it having been drawn by his agent at his request, he cannot be relieved of specific performance on the ground of fraud or mistake, where no evidence of such fraud or misrepresentation is shown.

Appeal from Common Pleas Circuit Court of Marlboro County; Dantzler, Judge.

Action by the Cape Fear Lumber Company against Alexander J. Matheson. From the circuit decree, defendant appeals. Affirmed.

Knox Livingston, for appellant.

T. W.Boucher, Johnson & Johnson, and C. A. Woods, for respondent.

GARY, A. A. J. (In place of WOODS, J., disqualified). On the 17th day of October, A. D. 1898, the appellant, A. J. Matheson, executed to the respondent, the Cape Fear Lumber Company, what is termed an "option" on certain timbers on a tract of land in the county of Marlboro, and also certain other rights set forth in said "option." The same, being under seal and executed in the presence of two witnesses, is set out in the complaint On or about the 27th day of September, A. D. 1898, the appellant tendered a deed to the respondent. The said deed was refused, for the reason that the same limited the timber to pine and size to twelve inches at the stump; same being not in accordance with the written option held by the respondent On the 14th day of January, and before the expiration of the 90 days given in the option, the respondent tendered to the appellant $500 in gold and demanded from him a deed in accordance with the written option. The appellant declined to accept the money, and refused to execute a deed in any form other than the one tendered by defendant, Matheson. Soon thereafter this suit was entered by the respondent by the service of the summons and complaint, which is fully set out in brief. The prayer of said complaint is as follows: "(1) That the defendant be required specifically to perform said agreement, and, on the payment of the purchase money, execute a conveyance to said plaintiff

•Rehearing denied April 30, 1904. In accordance with the terms of said contract. (2) That the defendant, his agents and servants, be restrained and enjoined from cutting or in any manner interfering with the timber on said land, or in any manner disposing of the property above mentioned. (3) For such other and further relief as to justice and equity may appertain. (4) For the costs of this action." The defendant, appellant, answered in due time, and by his answer attempts to defeat this contract on the grounds, first, of mutual mistake, and then of fraud and deceit of the other parties. The case came on to be heard by his honor, Judge Dantzler, at the spring (1902) term of the court, and he filed his decree, granting a judgment, as prayed for in the complaint, for specific performance, from which decree the appellant appeals to this court upon numerous exceptions, which in different form and in different language impute error to the circuit judge in decreeing specific performance of the option sued on.

The issue in this case is mainly a question of fact, upon which question there is a direct conflict of testimony as to what were to be the terms of the written option; the defendant, Matheson, contending that a mistake in the formal execution of the instrument was made by the scrivener, his bookkeeper, who drew it up, and the plaintiffs contending that the instrument itself is in the form agreed upon by the parties at the time. Upon this question the circuit judge finds in favor of the respondent in these words: "The parties occupied no fiduciary relation to each other. They were dealing at arms' length, and were fully competent to contract. They had every opportunity of knowing the contents of the option signed by ...