Carter & Co. v. Kaufman

• Decision Date: 27 November 1903
• Parties: CARTER & CO. v. KAUFMAN et al.
• Court: South Carolina Supreme Court

45 S.E. 1017

67 S.C. 456

CARTER & CO. v. KAUFMAN et al.

Supreme Court of South Carolina

November 27, 1903

Appeal from Common Pleas Circuit Court of Oconee County.

Action by Carter & Co. against Otto Kaufman and Helena C. Kaufman. Judgment for defendants, and plaintiffs appeal. Reversed.

Plaintiffs appeal on the following exceptions:

"(1) Because it was error for the circuit judge to hold and charge the jury as follows: 'If you find that the plaintiffs did rescind the contract by striking out the forfeiture, then the verdict will be for the defendant; the error being, it is respectfully submitted, in charging virtually that, if the plaintiffs could not recover under the forfeiture clause of the contract, they could not recover at all;' while we respectfully submit that plaintiffs were entitled to recover whatever actual damages they received whether they waived the forfeiture clause of contract or not. (2) Because it was error for the circuit judge to hold and charge the jury as follows: 'The plaintiffs would be entitled to recover such actual damages as they sustained by the failure of the defendants to carry out the contract. That is, if the plaintiffs did not relieve the defendants of the forfeiture in the contract after entered into, then the plaintiffs are entitled to recover such damages as are shown by the testimony. The defendants admit that they entered into this contract. If they signed this contract, and failed to carry it out, then the plaintiffs are entitled to such damages as, in your opinion, are right in the case. Now, I charge you as a matter of law in the pleadings that they are not entitled to recover $5 per day for ten days, nor $10 until the building is completed. They are entitled to recover such damages as they sustained, if you find that the defendants were not relieved from the forfeiture in the contract. Mr. Foreman, your verdict will be, "We find so much for the plaintiffs," unless you find that the plaintiffs did not relieve the defendants of the forfeiture in the contract. Then your verdict will be, "We find for the defendants," or so much for the plaintiffs, and sign your name as ""Foreman." D' The error being, we respectfully submit, in virtually charging the jury that plaintiffs were not entitled to recover their actual damages, if plaintiffs had agreed to waive the forfeiture clause; and we respectfully submit that if plaintiffs did not waive the forfeiture clause, the damages were liquidated, and plaintiffs were entitled to recover the damages they had received as liquidated in the contract; or, if plaintiffs had waived the forfeiture clause of the contract, they were entitled to recover whatever actual damages they had sustained, and his honor should have so held, as matter of law.

(3) Because all the evidence shows the offer to waive the forfeiture clause was conditioned upon the defendants completing the buildings they had contracted to erect for plaintiffs, and that the conditions were never performed by the defendants; and defendants cannot claim any benefit of any agreement made by plaintiffs to waive the forfeiture clause until they have complied with the conditions upon which the forfeiture was to be waived.

(4) Because, if there had been an agreement on the part of the plaintiffs to waive the forfeiture clause of the contract, or to rescind the contract, there was no consideration to support such agreement, and such agreement would be null and void.

(5) All the evidence shows that forfeiture clause was not canceled, nor the contract rescinded; that at most it was an agreement without consideration to cancel the forfeiture clause or to rescind the contract, which was never done.

(6) Because his honor the presiding judge erred in refusing plaintiffs' motion for a new trial based upon the alleged errors of the presiding judge in his charge to the jury in relation to the waiver of the forfeiture by plaintiffs.

(7) Because his honor the presiding judge erred in refusing plaintiffs' motion for a new trial based upon the ground that, if there had been an agreement on the part of the plaintiffs to cancel forfeiture clause of the contract, or to rescind the contract, such agreement would have been without consideration and, therefore, null and void.

(8) Because his honor the presiding judge erred in refusing plaintiffs' motion for new trial based upon the ground that the evidence shows the offer to waive forfeiture was a conditional one, and conditions were not fulfilled on the part of defendants.

(9) Because his honor the presiding judge erred in refusing plaintiffs' motion for a new trial based upon the ground that all the testimony shows contract was not canceled, at most, an agreement without consideration to cancel, which was never done.

(10) Because it was error for the presiding judge to allow the witness Otto Kaufman, one of the defendants, to answer the following question, propounded by the attorney for the defendants, over the objection of plaintiffs' attorney "Now, Mr. Kaufman, after the contract was signed up, did you go to Carter & Co. and tell them that you didn't know the forfeiture clause was there; and didn't

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