Caldwell v. Duncan
| Decision Date | 06 December 1910 |
| Citation | 69 S.E. 660,87 S.C. 331 |
| Parties | CALDWELL v. DUNCAN et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Barnwell County; Geo. W Gage, Judge.
Action by Howard Caldwell against W. J. Duncan and others. From a judgment for plaintiff, defendants appeal. Affirmed.
J. A Willis, for appellants. J. E. Harley and J. E. Davis, for respondent.
The complaint alleges that the defendants purchased from plaintiff certain options, which he had secured on timber rights on Upper Three runs, in Aiken and Barnwell counties under a written contract, dated July 31, 1907, whereby they agreed to save the plaintiff harmless from any claims and demands which W. D. Black had against him for procuring said options; that defendants knew, when they signed the contract, that Black had procured the options for plaintiff, and that plaintiff had agreed to pay him 50 cents an acre for his services; that, after they had failed and refused to pay his claim, Black sued plaintiff therefor and attached his property, and plaintiff was compelled to pay him $950 in satisfaction of his claim. Plaintiff demanded judgment for $2,000 damages resulting from the breach of contract and the attachment proceedings. Defendants denied all the allegations of the complaint and set up an affirmative defense and a counterclaim for $5,000 damages, both of which arose out of the same facts alleged, which need not be repeated here, as they do not affect the questions presented in this appeal. The plaintiff recovered judgment for $950.
Plaintiff proved the contract alleged, and testified that he had delivered the options procured by Black to defendants, and introduced in evidence the attachment proceedings of Black against him, which showed that Black had sued him for $1,500 for procuring the options on three thousand acres of land. He also testified that he had paid Black $950 in compromise and settlement of his claim, and introduced Black's receipt therefor. Black testified that he procured options on about 3,000 acres, which he turned over to plaintiff; that he made demand on defendants for his claim, which was refused; that he then brought action against plaintiff for $1,500 for his services in procuring the options, and attached his property; that plaintiff paid him $950 in compromise and settlement of his claim; that on the day the contract between plaintiff and defendants was made the defendant W. J. Duncan asked him what his claim was, and he told him it was over $1,000; that said defendant offered him $200 in settlement thereof, which he refused. The defendant W. J. Duncan, who negotiated the transactions with plaintiff, testified that plaintiff and defendants were interested in procuring the options, and defendants agreed with plaintiff that he should employ Black to secure them, and pay him 50 cents an acre for his services; that defendants, having contracted to sell the options to Montague & Baker, made demand on plaintiff for them; that plaintiff refused to deliver them, unless defendants would pay him $1,332.50 and agree to pay Black's claim for procuring them; that, after wrangling two or three days, they agreed to his demands, in order to consummate their contract with Montague & Baker, and therefore entered into the agreement sued on; that he knew, before signing it, that something was due to Black for procuring the options, thought he had procured options on about 1100 acres, and offered him $200, which he refused.
The foregoing statement of the substance of the evidence shows there was no error in refusing the motions of defendants for a nonsuit and for the direction of the verdict, which can be granted only when there is no evidence to sustain the material allegations of the complaint. Defendants contended that it was necessary for plaintiff to prove the number of acres upon which Black had procured options in order to determine the amount of his liability to Black and of defendants' liability over to plaintiff, and that the option contracts were the best evidence as to the number of acres thereby secured, and objected to any other evidence as to the number of acres secured. This objection was properly overruled. The number of acres covered by the options was an independent fact, provable by any competent testimony outside of the options. This was not an attempt to prove the contents of a written instrument by parol. Such contracts usually describe the acreage as so many acres, more or less. But it is not necessary to their validity that the acreage be stated at all. A contract giving an option to buy the timber on a certain tract of land properly described would be valid without stating the number of acres therein contained. Therefore the admission of parol evidence to prove the number of acres actually contained in a tract of land does not violate the rule that the best evidence to prove the facts in issue must be produced. Here the writing was only collateral to the fact in issue. The objection of defendants to the record in the suit of Black against the plaintiff was also correctly overruled for several reasons: First, the witness who proved the record was allowed to testify, without objection, what each paper in the record was before any of them were offered in evidence; second, when the record was offered and received in evidence, no ground of objection was stated; third, the record was competent and relevant evidence to prove the fact that plaintiff had been sued by Black for his services. 1 Gr. Ev. §§ 527, 538.
The remaining exceptions are to certain parts of a supplemental charge which the judge delivered to the jury after they had the case under consideration from the afternoon of one day till about noon of the next day. So much of that charge as bears upon the questions presented by the exceptions was as follows: ...
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