Bishop v. Tolbert, 18628
| Decision Date | 03 April 1967 |
| Docket Number | No. 18628,18628 |
| Citation | 249 S.C. 289,153 S.E.2d 912 |
| Parties | C. D. BISHOP and Enos O. Bishop, Appellants, v. Garland TOLBERT, Lee Alice T. Brockman and W. R. Timmons, Respondents. |
| Court | South Carolina Supreme Court |
Younts, Reese & Cofield, Greenville, for appellants.
Benjamin A. Bolt, Leatherwood, Walker, Todd & Mann, Ernest J. Howard, Greenville, for respondents.
This action was brought by C. D. Bishop and Enos O. Bishop, the appellants herein, against Garland Tolbert, Lee Alice T. Brockman, the respondents herein, to enforce the specific performance of a contract made by the appellants with the respondents whereby they agreed to sell to the appellants a tract of land containing 19.9 acres, more or less, located in Greenville County, South Carolina. W. R. Timmons was joined as a party to this action because of a sales contract made with him by the respondents subsequent to the time of the making of the contract between the appellants and respondents. The appellants demanded upon the court ordering specific performance of their contract with the respondents that the Timmons contract be nullified and declared of no force and effect.
This cause was referred to the Master in equity for Greenville County to take the testimony and to report his findings of fact and conclusions of law. The Master in Equity, on April 28, 1966, filed his report, finding that the appellants were not entitled to specific performance of the contract in question. The appellants filed numerous exceptions to the Master's report and a hearing was held thereon before The Honorable Frank Eppes, Resident Judge of the Thirteenth Circuit, who, by his order of August 16, 1966, confirmed the Master's report and made it the judgment of the circuit court. This appeal followed.
The exceptions of the appellants raise the following questions: (1) was time of the essence of the contract; (2) did the Master and Circuit Judge err in failing to find that the appellants were ready, willing and able to perform the contract; and (3) were the respondents chargeable with conduct which showed that they were not ready, willing and able to perform their contract. We consider these questions in the light of the well established rule that in suits in equity findings of fact by a Master, concurred in by the Circuit Judge, are not to be disturbed on appeal unless it is shown that such findings are either without evidentiary support or are against the clear preponderance of the evidence. Crown Central Petroleum Corp. v. Elmwood Properties, 244 S.C. 588, 138 S.E.2d 38.
By the terms of the contract entered into on August 2, 1965, the respondents agreed to sell and the appellants agreed to purchase 'that parcel of land situate in the County of Greenville, State of South Carolina, containing 19.9 acres, more or less, located on both sides of Heyward Road and being the same property as received by (respondents) from the estate of James Tolbert, who died in 1938, in the County of Greenville.' The purchasers agreed to pay the sellers for said tract of land the sum of Twenty-five Thousand & 00/100 ($25,000.00) Dollars, of which One Thousand & 00/100 ($1,000.00) Dollars was paid upon the making of the contract, and the balance of Twenty-four Thousand & 00/100 ($24,000.00) Dollars was to be paid 'on or before September 1, 1965' and 'upon the payment of the purchase price above set forth' the respondents agreed to execute and deliver to the appellants a good fee simple general warranty deed to the property.
At the time the contract of sale was entered into, the respondent, Garland Tolbert, was a resident of Cleveland, Ohio, and the respondent, Lee Alice T. Brockman, was a resident of the City of New York. They have relatives who reside in the same section of Greenville County as do the appellants. The property which was the subject of the contract is located in the same section of Greenville County.
Garland Tolbert was in Greenville County on August 2, 1965, for the purpose of seeing a real estate dealer about selling the above described property when he stopped at the place of business of C. D. Bishop, one of the appellants. Tolbert and Bishop then began negotiations for the sale and purchase of the property, and upon reaching an agreement thereabout they went to Fountain Inn to see an attorney who now represents the appellants. This attorney prepared the aforementioned contract and such was executed by the appellants and Garland Tolbert. Thereafter, the contract was mailed to the City of New York where it was executed by Lee Alice T. Brockman. This attorney was at that time employed by the appellants to attend to the closing of the transaction and he was to prepare the deed for execution by the respondents. It was agreed that if the respondents could not come to Greenville, the necessary instruments would be sent to them for execution. It appears that there was no further contact or communication between the respondents and the appellants nor with the attorney for the appellants until August 28, 1965, when Lee Alice T. Brockman telephoned the appellants' attorney and inquired whether the appellants would be ready to close the transaction on September 1, 1965. Lee Alice T. Brockman was told to come to Greenville from New York for the purpose of concluding the transaction and in compliance with this request she came from New York to Greenville, and Garland Tolbert having been notified by Lee Alice T. Brockman came from Cleveland to Greenville to conclude the transaction.
The Master found as a fact that the respondent, Lee Alice T. Brockman, was advised during the telephone conversation that there was no reason why the transaction could not be closed on September 1, 1965. The testimony upon this issue as given by Lee Alice T. Brockman was as follows:
'I said to Mr. Younts--'I notice on the contract it calls to be closed September 1st, and I had not heard from you'. He said--'The reason I have not notified you and Garland, I hadn't got the surveyor out there yet'. He said that he would try to get the surveyor out Monday, August 30th. And I said--'I am disappointed, I had planned to come down'. He said--'Come on down, I am sure we will be ready to close on the 1st'. I said to him--'I am leaving Monday and I will be there Tuesday at my brother's house above Mr. Bishop's, please notify my brother at what time the closing will be."
The brother referred to was the Reverend Theodore Tolbert and he lived approximately one hundred yards from Bishop's place of business.
Following the conversation of Lee Alice T. Brockman with the attorney for the appellants she secured permission from her employer to be absent from work for one week so she could come to Greenville for the purpose of closing the sale of the land to the appellants. She arrived in Greenville on August 30, and her brother arrived on August 31. The Master found as a fact that these parties arrived in Greenville on the above stated dates. It was testified that the attorney for the appellants did not call or get in touch with them in any way, even though he had promised that he would. It was further testified that the respondents made several unsuccessful efforts to contact the appellants and the first contact made was on the night of September 5, 1965. As a result of the conversation with one of the appellants on September 5, 1965, the respondents, with their brother, went to the place of business of the appellants on the morning of September 6, 1965, and accompanied one of the appellants to the property for the purpose of finding the pins representing the boundary markers to the tract of land. It was testified that one of the appellants said that he would not buy the property unless he found these pins. We here point out that it was stipulated that the appellants would consummate the purchase of the property in question regardless of acreage and there was no requirement for making a new survey or locating the pins. The testimony as to the conversation between the respondents and one of the appellants while they were on the property is in conflict. The Master accepted the version given by the respondents.
After the parties had been to the premises in question and while they were still there, a conversation between Lee Alice T. Brockman and C. D. Bishop took place. We quote such:
'Q. Tell the Court what that conversation was?
'A. I said--'Mr. Bishop, are you going to close today'? And he said--no, he could not close because he couldn't find the pins. I said--'Mr. Bishop, I would like for you to close, I have to be back in New York'. And he said he could not close. I said-- And he said--'No, I can't close'. My brother, Amos, said--'Go ahead and close, if you have to have the survey you can have it done after they are gone'.
'Q. Was that conversation on the premises?
'A. Yes.
'Q. Did he tell you he was going to do it before he closed?
'A. Said he would have to have the survey first.
'Q. You left the property and went back to his place of business?
'A. Yes.
'Q. Did you have any further conversation?
'A. When he got out of the car I said--'Mr. Bishop, if you don't close tomorrow morning I am leaving, I can not stay any longer, and the contract will be off tomorrow morning'. And that was all.
'
Amos Tolbert, a brother of the respondents, testified with reference the foregoing conversation, as follows:
'A. After we came back to the car, we were standing at the car and my sister came over and asked Mr. Bishop--'Why don't you close out...
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