McLester v. Barlow

• Citation: 78 S.E. 523,95 S.C. 25
• Parties: McLESTER v. BARLOW.
• Decision Date: 28 May 1913
• Court: United States State Supreme Court of South Carolina

78 S.E. 523

95 S.C. 25

McLESTER v. BARLOW.

Supreme Court of South Carolina

May 28, 1913

Appeal from Common Pleas Circuit Court of Dillon County; C.J Ramage, Special Judge.

"To be officially reported."

Gibson & Muller, of Dillon, for appellant. T. D. Maness, of Concord N. C., and J. K. Owens, of Bennettsville, for respondent.

GARY C.J.

The appellant's attorneys preface their argument with the following statement of the facts, which we adopt:

"The above-entitled case was brought by the plaintiff to recover of the defendant the sum of $1,365, with interest from the dates of payment on certain cotton mill stock, purchased by the plaintiff from the defendant. The complaint alleges payments of the amount in small items, running from February 20, 1909, to July 10th. The stock purchased was 40 shares of the Dillon Cotton Mills, at the price of $4,200 represented by the defendant, according to complaint, to be worth $140 a share. Plaintiff alleges that it was absolutely worthless, and he (plaintiff) received nothing from the money so paid. He alleges also that on the -- day of August, 1910, the contract of purchase was rescinded, and defendant agreed to return the money paid. The defendant denied the contract of rescission, and alleged that the contract of sale was entered into in good faith, and was still binding, and that he was ready and willing to transfer the stock, upon the balance of the purchase money being paid. He also, by way of affirmative relief, asked for specific performance of the contract, and, in case plaintiff refused to comply, that then the stock be sold at public auction, and the proceeds be applied to the purchase price thereof, and that defendant have judgment against the plaintiff for any deficiency. The case came on to be heard at the fall term, 1912, in the court of common pleas, before Judge Ramage and a jury, and resulted in a verdict for the plaintiff in the full amount asked.

"The exceptions raise practically two questions: (1) Whether or not there was error on the part of the court in admitting oral testimony to vary and contradict the terms of a receipt, which was in evidence, and which defendant contended was a memorandum under the statute of frauds. (2) Whether or not it was error for the court to refuse to construe the said receipt or memorandum, and charge the jury that under the contract of sale the equitable title to the stock vested in McLester and became his property; the defendant holding it only as security for the balance of the purchase money."

We proceed to consider the exceptions raising the first of said questions. Testimony in behalf of the plaintiff, for the purpose of proving the original as well as the second or substituted agreement, was introduced without objection. These exceptions must therefore be overruled.

We will next consider the exceptions raising the second question. The receipt therein mentioned was as follows:

"1,000.00. Dillon, S.C. Feb. 20, '09.

"Received of S. P. McLester ten hundred and 00/100 dollars, part payment on forty (40) shares Dillon Cotton Mills;

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