City of Orangeburg v. Buford

• Decision Date: 08 June 1955
• Docket Number: No. 17015,17015
• Citation: 87 S.E.2d 822,227 S.C. 280
• Parties: CITY OF ORANGEBURG, Respondent, v. Alma K. BUFORD, Belk-Hudson, Inc., et al., Appellants.
• Court: South Carolina Supreme Court

Page 822

87 S.E.2d 822

227 S.C. 280

CITY OF ORANGEBURG, Respondent, v. Alma K. BUFORD, Belk-Hudson, Inc., et al., Appellants.

No. 17015.

Supreme Court of South Carolina.

June 8, 1955.

R. A. Bowman, Orangeburg, for appellants.

Rosen, Horger & Sims, Orangeburg, for respondent.

OXNER, Justice.

This proceeding was instituted on June 25, 1949, by the City of Orangeburg to condemn, for the purpose of establishing a public alley, a strip of land approximately 14 by 47 feet belonging to Mrs. Alma K. Buford. The landowner contended that there was no necessity for the taking and further asserted that the value fixed in the City's declaration was wholly inadequate. A hearing was had before Judge Brailsford who, in an order filed on August 12, 1952, held that a reasonable necessity existed for condemning the property; required the City to deposit an additional sum to secure the payment of any amount ultimately determined as proper compensation; vested title to the property in the City; and directed that the case be entered on the calendar for trial before a jury for the purpose of determining the amount of compensation and to whom same should be paid.

The case was tried before Judge Baker at the October, 1953, term of the Court of Common Pleas. The jury awarded compensation in the sum of $1000. From the judgment entered thereon, Mrs. Buford has appealed.

It is first contended that the Court erred in refusing to permit counsel for the landowner to read her answer to the jury. Prior to the introduction of the testimony the trial Judge fully and clearly explained to the jury the issues to be tried and the general rule to be applied in fixing compensation. The reading of the pleadings could have served no useful purpose. The answer contained one defense which had been previously disposed of in the order of Judge Brailsford. The remaining portion related to evidentiary matters which were later fully developed in the testimony. This exception is overruled.

We next consider the exceptions relating to the exclusion of certain parol evidence offered by the landowner as to the terms of a lease made with Belk-Hudson, Inc. A brief review of the facts is necessary for a proper understanding of the question presented. Mrs. Buford owned a lot in the City of Orangeburg fronting on Russell Street upon which there was a two-story brick building extending back a distance of 140 feet, with a rear width of 47 feet. This building had been rented by Belk-Hudson, Inc. for a long number of years. On May 4, 1949, the parties entered into a renewal lease wherein, in consideration of a monthly rental of $350, Mrs. Buford leased this property to Belk-Hudson, Inc. for a term of five years beginning July 1, 1950, with the right on the part of the lessee to extend said lease at the same rental for an additional period of five years. The lessee agreed at its own expense to construct an addition at the rear of said store building 'extending approximately 25 feet', which was to be in keeping with the present building and constructed of the same kind of material. The lessee further agreed to excavate a basement under the entire first floor.

On the trial of the case the landowner offered testimony by the manager of Belk-Hudson, Inc. to the effect that it was the understanding of the parties that the lessee would extend the building to the rear as far as possible but since they did not know exactly where the sewer line was, the extension was described in the lease as 'approximately 25 feet'. According to this witness, it was later determined that the building could be extended a distance of 35 feet, leaving four feet at the rear of the lot for a sewerage line, and the construction plans were made on this basis. The work was commenced shortly after the execution of the lease on May 4, 1949, and at the time of the service of the condemnation notice on June 25th, the excavation had been completed, the concrete foundation poured, and the erection of the walls commenced.

As a result of the City condemning the rear 14 feet of this lot for the purpose of establishing a public alley, the lessee had to abandon its plans to extend the store building a distance of 35 feet and restrict same to 25 feet. This reduced the construction costs $11,040.

The Court excluded all testimony tending to show that the proposed addition to the building was to be 35 feet instead of 25 feet as stated in the lease, upon the ground that such testimony varied and contradicted the terms of the lease.

We think the testimony was admissible. The rule that parol evidence is inadmissible to vary, explain or contradict a writing is one for the benefit of the parties to the instrument and is generally limited to them and their privies. It does not apply to a controversy between third parties, or to a controversy between a third party and one of the parties to the instrument. Ex parte Moore, 161 S.C. 107, 159 S.E. 503; Peoples National Bank of Greenville v. Upchurch, 183 S.C. 147, 190 S.E. 515; 20 Am.Jur., Evidence, Section 1131, page 985; 32 C.J.S., Evidence, Section 861. This is so because a stranger, not having assented to the instrument, is not bound by it and is free to vary or contradict it, and consequently his adversary must be eqully free to do so. The City of Orangeburg was not a party to the lease above mentioned and was not bound by...