Cline v. Farmers' Oil Mill

• Decision Date: 19 July 1909
• Citation: 65 S.E. 272,83 S.C. 204
• Parties: CLINE v. FARMERS' OIL MILL.
• Court: South Carolina Supreme Court

65 S.E. 272

83 S.C. 204

CLINE v. FARMERS' OIL MILL.

Supreme Court of South Carolina

July 19, 1909

Appeal from Common Pleas Circuit Court of Cherokee County; R. W Memminger, Judge.

Action by H. S. Cline against the Farmers' Oil Mill. From a judgment for plaintiff on a directed verdict, defendant appeals. Appeal dismissed.

The following is the order of Memminger, J., refusing a new trial:

"This action came on for jury trial before me at Gaffney, March 2 1909. Mr. Hall for plaintiff; Mr. Webster contra. The action was upon an instrument in writing in the nature of a promissory note, of which the following is a copy 'Gaffney, S. C., Aug. 24, 1908. The Farmers' Oil Mill promises to pay to H. S. Cline one hundred and fifty dollars for one bay mare mule, by Sept. 15, 1908. [Signed] Farmers' Oil Mill, by R. C. Sarratt, Pres. & Treas.' The answer admits the instrument, and sets up as a defense that defendant was not to pay said $150 unless it could collect $100 thereof from other persons named, that said collections could not be made, that the instrument was intended as a bond, etc., and that the failure of these alleged conditions rendered it ineffective, and prays cancellation of the instrument and dismissal of complaint. Upon objection to testimony as to the alleged defense, I held that the testimony tended to, and did, vary, contradict, and add to the terms of the written instrument, and that, as the answer attempted no other defense, and such testimony was inadmissible, the case for the plaintiff having been proved the jury should find for plaintiff, and it was so ordered. At the request of plaintiff's attorney, I heard a motion for new trial before adjournment at Gaffney on the ground that my said ruling was erroneous; and I have since gone carefully over the authorities presented, and many others, on my own research. The question presented is, perhaps, delicate of solution; the principle being easy and certain, but the application of it difficult in each particular case. However, howsoever plausible the argument to the contrary may be, I am clear of adhering to the ruling made at the trial.

"I think the case is precisely with and controlled by the following decisions of our Supreme Court, any one of which would demonstrate the correctness of the ruling, to wit: Gazoway v. Moore, Harp. 401; McDowall v. Beckly (1817-1818) 2 Mill, Const. 265; McClannaghan v. Hines, 2 Strob. 122; McGrath v. Barnes, 13 S.C. 328, 36 Am. Rep 687; Blassingame v. Laurens, 80 S.C. 43, 61 S.E. 96.

"The reasoning and principal authority relied upon to the contrary (Ware v. Allen, 128 U.S. 590, 9 S.Ct. 174, 32 L.Ed. 563), are upon the totally different principle that parol testimony is admissible to show that a condition upon which a written instrument was to become effective never occurred; that it was not a question of contradicting or varying a written instrument by parol evidence, but of that class of cases, well recognized in the law, by which an instrument, whether delivered to a third person or to the obligee himself, is made to depend as to its going into operation upon events to occur or be ascertained thereafter. This was the principle recognized and followed in Robertson v. Evans, 3 S. C. 330, not contradicting, varying, or adding to the terms of the instrument, but to show that it was not to bind at all if these conditions failed. In the case under consideration, however, there is no way of twisting or turning it, howsoever adroitly, but that if the allegations of the answer are taken as proved, the contract of the parties as set out in the instrument is contradicted, varied, and added to.

"The obligation which defendant assumes under the instrument is to pay $150, and the consideration thereof is 'one bay mare mule.' No fraud nor even mistake is alleged. It is not claimed that defendant did not get the mule in question, or that the mule was unsound in any respect, and so no consideration, or failure of consideration, sought to be established; but it all seeks to show that defendant was not in fact to pay $150 unless it collected $50 from one...