Benya v. Gamble, No. 0256

CourtSouth Carolina Court of Appeals
Writing for the CourtGOOLSBY; SANDERS, C.J., and GARDNER
Citation321 S.E.2d 57,282 S.C. 624
PartiesBarbro I. BENYA, Appellant, v. Gary E. GAMBLE, Respondent. . Heard
Docket NumberNo. 0256
Decision Date31 May 1984

Page 57

321 S.E.2d 57
282 S.C. 624
Barbro I. BENYA, Appellant,
v.
Gary E. GAMBLE, Respondent.
No. 0256.
Court of Appeals of South Carolina.
Heard May 31, 1984.
Decided Sept. 10, 1984.

Page 59

[282 S.C. 626] Ronald R. Norton, of Bethea, Jordan & Griffin, Hilton Head Island, for appellant.

James M. Herring and Curtis I. Coltrane, of Herring & Meyer, Hilton Head Island, for respondent.

[282 S.C. 627] GOOLSBY, Judge:

The appellant Barbro I. Benya brings this action against the respondent Gary E. Gamble alleging a breach of contract to purchase real estate. The trial court directed a verdict for Gamble. We reverse the judgment of the trial court and remand the case for a new trial.

The principal issues on appeal involve whether the evidence created a jury question concerning the existence of an enforceable contract between the parties and whether a provision in a real estate sales contract providing for the forfeiture of earnest money should be considered a penalty provision rather than a provision for liquidated damages as a matter of law. Other

Page 60

issues relate to the admission in evidence of the subsequent sales price of the subject property, to the refusal by the trial court to allow the introduction of evidence concerning Gamble's motive in failing to close the transaction, and to the refusal by the trial court to permit Benya to amend her complaint to conform to the proof at trial.

Benya's complaint alleges that on or about March 3, 1980, she entered into a written contract to sell to Gamble real property described as Lot No. 32 in Gull Point Subdivision on Hilton Head Island. According to the complaint, the sum of $10,000 "earnest money" was to be deposited and the closing date was to be no later than thirty days from March 3, 1980. Gamble, the complaint concludes, "failed and refused to effectuate closing," thus entitling Benya to recover from Gamble as liquidated damages the sum Gamble was to deposit as earnest money. In his answer, Gamble, among other things, denies the existence of the contract, asserts the statute of frauds as a bar to the enforcement of the contract, and alleges that the forfeiture provision was unenforceable because it constituted a penalty.

Upon the trial of the case and at the close of the evidence, the trial court directed a verdict in Gamble's favor finding that all the evidence, when viewed in the light most favorable to Benya, compelled the conclusion that no enforceable contract between the parties exists and that, in any event, the [282 S.C. 628] forfeiture provision as a matter of law constitutes an unenforceable penalty provision.

In reviewing a directed verdict, the Court of Appeals must consider the evidence and all reasonable inferences in the light most favorable to the party against whom the directed verdict was granted; and if the evidence is susceptible to more than one reasonable inference, a jury issue is created and the motion should be denied. Claytor v. General Motors Corp., 277 S.C. 239, 286 S.E.2d 129 (1982); see Cudd v. John Hancock Mutual Life Ins. Co., 279 S.C. 623, 310 S.E.2d 830 (S.C.App.1983).

Our first inquiry concerns whether the evidence is susceptible of the inference that an enforceable contract exists between Benya and Gamble.

A contract exists where there is an agreement between two or more persons upon sufficient consideration either to do or not to do a particular act. McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575, 94 A.L.R.2d 914 (1962). The essentials of a contract include an offer and acceptance. Pierce v. Northwestern Mutual Life Ins. Co., 444 F.Supp. 1098 (D.S.C.1978).

Because of the statute of frauds, certain contracts must be in writing to be enforceable. Section 32-3-10 of the South Carolina Code of Laws (1976) sets forth this State's statute of frauds. It provides in part:

No action shall be brought whereby:

* * *

(4) To charge any person upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; ...

* * *

Unless the agreement upon which such action shall be brought ... shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized.

A trial court should submit to the jury the issue involving the existence of a contract where its existence is questioned and the evidence is either conflicting or admits of more than one inference. Capital City Garage & Tire Co. v. Electric Storage Battery Co., 113 S.C. 352, 101 S.E. 838 (1920); 17A C.J.S. Contracts § 611a at 1225 (1963). Likewise, a trial court should submit an issue concerning the statute of [282 S.C. 629] frauds to the jury if there is evidence on which a finding either way might reasonably be made. 37 C.J.S. Frauds, Statute of § 291 at 833 (1943); see Thompson v. Thompson, 141 S.C. 56, 139 S.E. 182 (1927).

Although there is evidence in the record to support the conclusion that no enforceable contract exists between the parties,

Page 61

there is also sufficient evidence in the record to support the conclusion that one does exist.

According to Benya, Tom Jacoby, the Vice President of Lighthouse Realty, contacted her about the possibility of selling Lot 32 in Gull Point. At that time, the property was not listed for sale. Benya understood that Jacoby was representing Gamble, the President of Lighthouse Realty. On March 3, 1980, Jacoby came to her home and presented to her a written offer signed and dated that day by Gamble to purchase the property for $108,000. The offer was reflected upon a form prepared by Lighthouse Realty and was entitled "Contract of Sale Offer and Accept" [sic ]. Typewritten terms of the offer required Gamble to deposit $10,000 as earnest money and to pay the...

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30 practice notes
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • June 9, 2003
    ...between two or more persons upon sufficient consideration either to do or not to do a 354 S.C. 661 particular act." Benya v. Gamble, 282 S.C. 624, 628, 321 S.E.2d 57, 60 (Ct.App.1984). "Stated another way, there must be an offer and an acceptance accompanied by valuable consideration." Robe......
  • Tomlinson v. Mixon, No. 4070.
    • United States
    • Court of Appeals of South Carolina
    • January 9, 2006
    ...is an agreement between two or more persons upon sufficient consideration either to do or not to do a particular act." Benya v. Gamble, 282 S.C. 624, 628, 321 S.E.2d 57, 60 (Ct.App. A contract is an obligation which arises from actual agreement of the parties manifested by words, oral or wr......
  • Allegro, Inc. v. Emmett J. Scully, Synergetic, Inc., No. 5245.
    • United States
    • Court of Appeals of South Carolina
    • August 26, 2014
    ...S.E.2d 452, 454 (1987); Capital City Garage & Tire Co. v. Elec. Storage Battery Co., 113 S.C. 352, 101 S.E. 838 (1920); Benya v. Gamble, 282 S.C. 624, 627–29, 321 S.E.2d 57, 59–61 (Ct.App.1984). General contract law provides that a “ ‘contract exists when there is an agreement between two o......
  • Allegro, Inc. v. Emmett J. Scully, Synergetic, Inc., Appellate Case No. 2008-099926
    • United States
    • Court of Appeals of South Carolina
    • June 30, 2014
    ...S.E.2d 452, 454 (1987); Capital City Garage & Tire Co. v. Elec. Storage Battery Co., 113 S.C. 352, 101 S.E. 838 (1920); Benya v. Gamble, 282 S.C. 624, 627-29, 321 S.E.2d 57, 59-61 (Ct. App. 1984). General contract law provides that a "'contract exists when there is an agreement between two ......
  • Request a trial to view additional results
30 cases
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • June 9, 2003
    ...between two or more persons upon sufficient consideration either to do or not to do a 354 S.C. 661 particular act." Benya v. Gamble, 282 S.C. 624, 628, 321 S.E.2d 57, 60 (Ct.App.1984). "Stated another way, there must be an offer and an acceptance accompanied by valuable consideration." Robe......
  • Tomlinson v. Mixon, No. 4070.
    • United States
    • Court of Appeals of South Carolina
    • January 9, 2006
    ...is an agreement between two or more persons upon sufficient consideration either to do or not to do a particular act." Benya v. Gamble, 282 S.C. 624, 628, 321 S.E.2d 57, 60 (Ct.App. A contract is an obligation which arises from actual agreement of the parties manifested by words, oral or wr......
  • Allegro, Inc. v. Emmett J. Scully, Synergetic, Inc., No. 5245.
    • United States
    • Court of Appeals of South Carolina
    • August 26, 2014
    ...S.E.2d 452, 454 (1987); Capital City Garage & Tire Co. v. Elec. Storage Battery Co., 113 S.C. 352, 101 S.E. 838 (1920); Benya v. Gamble, 282 S.C. 624, 627–29, 321 S.E.2d 57, 59–61 (Ct.App.1984). General contract law provides that a “ ‘contract exists when there is an agreement between two o......
  • Allegro, Inc. v. Emmett J. Scully, Synergetic, Inc., Appellate Case No. 2008-099926
    • United States
    • Court of Appeals of South Carolina
    • June 30, 2014
    ...S.E.2d 452, 454 (1987); Capital City Garage & Tire Co. v. Elec. Storage Battery Co., 113 S.C. 352, 101 S.E. 838 (1920); Benya v. Gamble, 282 S.C. 624, 627-29, 321 S.E.2d 57, 59-61 (Ct. App. 1984). General contract law provides that a "'contract exists when there is an agreement between two ......
  • Request a trial to view additional results

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