Burnett v. Postal Tel. Cable Co.

Decision Date16 March 1905
Citation50 S.E. 780,71 S.C. 146
PartiesBURNETT v. POSTAL TELEGRAPH CABLE CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Spartanburg County Townsend, Judge.

Action by T. J. Burnett against the Postal Telegraph Cable Company. From judgment for plaintiff, defendant appeals. Affirmed.

Ralph K. Carson, Ravenel & Gantt, and Felder & Roundtree, for appellant. Stanyarne Wilson, for respondent.

JONES J.

The plaintiff brought this action against defendant company for damages for an alleged reckless and wanton trespass upon his land in the construction of its telegraph lines over same. The defendant, in its answer, alleged a written permit to enter and construct said lines, and that the lines were constructed with care and due regard to the rights of plaintiff, and within the limits of the permit. The plaintiff, by its testimony, among other things, sought to show that the alleged permit was obtained by false and fraudulent representation. The jury rendered a verdict in favor of plaintiff for $300, and from the judgment thereon defendant appeals.

1. The first exception assigns error in refusing defendant's motion for a nonsuit upon the ground that the defendant entered upon the premises under the permit from the plaintiff. The alleged written permit was not proven or introduced in evidence at this stage of the case. Some reference had been made to the existence of such a paper, but the testimony of plaintiff was to the effect that he had never given permission for the location and construction of the defendant's line at the place of its location, and that the defendant's agent had obtained the alleged permit by falsely and fraudulently representing that the line was to be located between a certain designated post on the Western Union line and the railroad and on the right of way of railroad through plaintiff's land, and that the railroad authorities had granted leave for defendant to put it there. There was testimony further that plaintiff, not being able to read without his glasses, and not having them with him in the field where the paper was signed, signed a paper without reading it or having it read to him, which he supposed gave permission to construct the line between the designated post and the railroad. It was therefore proper to refuse nonsuit and leave it to the jury to determine whether defendant had committed an unauthorized trespass upon plaintiff's property.

2. The second exception charges error in refusing a new trial on the ground that the jury disregarded the following instruction: "That if a party is induced to enter into a contract by false and fraudulent representation and receives a consideration therefor, he may, upon discovery of the fraud, repudiate or affirm the contract; but before he can bring an action to rescind the party deceived must either return, or offer...

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