Ashe v. Carolina & N.W. Ry. Co.

• Decision Date: 19 January 1903
• Citation: 43 S.E. 393,65 S.C. 134
• Parties: ASHE v. CAROLINA & N.W. RY. CO. et al.
• Court: South Carolina Supreme Court

43 S.E. 393

65 S.C. 134

ASHE v. CAROLINA & N.W. RY. CO. et al.

Supreme Court of South Carolina

January 19, 1903

Appeal from common pleas circuit court of York county; Watts, Judge.

Action by W. N. Ashe, Jr., against the Carolina & Northwestern Railway Company and J. R. Culp, Jr., agent. Judgment of nonsuit, and plaintiff appeals. Reversed.

W. W Lewis, for appellant.

J. H Marion, for appellees.

GARY A. J.

The appeal herein is from an order of nonsuit. The complaint alleges that "on or about the 12th day of October, 1900 the defendant railway company, for value received, undertook and contracted with plaintiff to haul for plaintiff certain wood belonging to him from a point on said line of railway to Yorkville, in said county and state, and upon its arrival at the latter point to deliver the same to plaintiff; that in accordance with said contract said defendant railway company did haul part of said wood to Yorkville, and immediately upon its arrival there the plaintiff paid and offered to pay to said defendant railway company, and tendered to it through its officers and agents authorized to receive same, *** all sums of money which said defendant railway company was entitled to charge and receive, and all which plaintiff had agreed to pay to said defendant, for hauling said wood to Yorkville, and plaintiff thereupon demanded the surrender and delivery to him of the wood so hauled and belonging to plaintiff, but said defendant railway company, through its officers and agents, and the defendant J. R. Culp, acting together, took into and retained in their possession, and utterly refused and neglected to surrender and deliver the same to plaintiff, and refused and neglected to allow plaintiff to have said wood, or any part thereof, although plaintiff had in all respects fully complied with his part of the agreement with said railway company." The answer was a general denial. The grounds of the motion for nonsuit and the reasons assigned by his honor in granting it are thus stated in the record "Defendant's Counsel: If your honor please, I desire to enter a motion for a nonsuit on the ground that the plaintiff here has not proven that the failure to deliver this wood to him by the defendant railroad company was in violation of any contract or the condition of any contract entered into by Mr. Ashe with the defendant railway company or the failure to deliver the wood, which he alleges is the cause of his damage,--the failure to deliver the wood after it had been brought from Guthriesville or from Lowrysville to Yorkville, on the day in question. His cause of action is the failure of the railway company to deliver to him the wood has caused this damage. Now, if your honor please, it is incumbent upon him to show that the failure of the railway company to deliver to him the wood was in violation of either its legal duty or in violation of some specific contract or special contract entered into by and between the railway company and Mr. Ashe with reference to this particular delivery of wood. Now, if your honor please, the contract between these people is included in the writings before the court, and I respectfully submit that anything else that the witness Mr. Ashe has stated here as to any conversation with Mr. Nichols and Mr. Culp has not shown that there was at any time anything more than an understanding on Mr. Ashe's part of the effect of certain conversations or transactions. So far as the proof of any contract other than is entered into here by and between these people in the letters, there is not a scintilla of evidence that is worthy of consideration by a jury. The Court: Gentlemen, there is nothing ambiguous in the contract, so far as the letters make it out here. The correspondent makes it out that the railroad company agreed to furnish cars for ten hours for $55, and over that they were to pay more,--that is, if they had it longer than ten hours. Well, now, what does it mean by the payment of $55? If a man says he offers a piece of property for a certain amount of money, that means a cash transaction. These railroad officials agreed to furnish this train for $55. They had a right to demand that $55 in cash, when they demanded the cash. If they went and loaded up the train with wood, they had a right to demand the $55 before delivery of the freight, if there was nothing to show that was done on a credit. The letters are silent as to when this money was to be paid, and, in the absence of any express contract along that line, the presumption of law is that it was a cash transaction, and the railroad had a right to demand the cash at any time. Before they furnished the cars, before they actually turned them over, or, if they didn't do it, then if they went and loaded them, they had a right to demand $55 for ten hours before they turned over the freight. Now, as to the alleged contract made with Mr. Culp. The plaintiff here says, according to my recollection, that he didn't think that Mr. Culp was acting within the scope of his authority. He didn't think he had a right to make that contract. He thought he communicated with somebody else. It is incumbent upon the plaintiff to show that Culp had the right to make the new contract, or was acting within the scope of his authority. The testimony along that line forces me to believe that he didn't believe that Culp was acting in the scope of his authority; in other words, that Culp had any right to rescind Nichols' contract. Now, what took place between him and Nichols after the train got here? He testified that there was an agreement,--he gives his understanding. There is quite a difference between facts and conclusions. If he had stated what the conversation was, then it would have been of great importance, so far as this motion is concerned. I am inclined to think, taking all the testimony in the case, that the motion for a nonsuit should prevail, and I so order." In other words, the ground of the defendant's motion for nonsuit was that the entire contract was reduced to writing, and that its refusal to deliver the wood until the plaintiff paid the $55 was neither a violation of its legal duty nor of any contract between the plaintiff and the railway company. The presiding judge granted the nonsuit on the ground that the written correspondence by which the parties entered into the contract was silent as to the time when the $55 for hauling the wood was to be paid, and that the defendant therefore had the right to demand the cash at any time,--either before it furnished the cars or before delivering the wood which it hauled for the plaintiff in pursuance of the contract. It will not be necessary to set out the entire correspondence, but only Exhibit E, which contains the terms of the contract in so far as it was reduced to writing, and is as follows: "Chester, Sep. 20, 1900. York Brick Works, Yorkville, S. C.--Dear Sirs: Your favor of the 19th, addressed to L. T....