Davis v. Cordell

• Decision Date: 05 August 1960
• Docket Number: No. 17694,17694
• Citation: 237 S.C. 88,115 S.E.2d 649
• Court: South Carolina Supreme Court
• Parties: Clara H. DAVIS, Respondent, v. W. R. CORDELL, Appellant.

Page 649

115 S.E.2d 649

237 S.C. 88

Clara H. DAVIS, Respondent, v. W. R. CORDELL, Appellant.

No. 17694.

Supreme Court of South Carolina.

Aug. 5, 1960.

Hinson & Hamer, Greenville, for appellant.

Bolt & Cox, Greenville, for respondent.

LEGGE, Justice.

Respondent, owner of a parcel of land in Greenville County, sought in this action to have a contract for the sale of it to appellant: (1) adjudged void for uncertainty, and (2) cancelled because of alleged failure on appellant's part to perform within a reasonable time certain acts necessary for consummation of the sale. Appeal is from an order of the County Court vacating the contract because of appellant's unreasonable delay. Respondent urges invalidity of the contract as an additional ground for sustaining the judgment.

The challenged instrument, which was signed by both parties on December 23, 1958, was attached to the complaint as an exhibit, and reads as follows:

'Contract

'State of South Carolina

'County of Greenville

'This agreement entered into by and between W. R. Cordell, hereinafter known as the purchaser and Clara H. Davis, hereinafter known as the seller:

'Witnesseth:

'In and for the considerations hereinafter expressed, the seller agrees to sell and the purchaser agrees to buy that certain tract of land in the County of Greenville, State of South Carolina in the Berea Section containing approximately 12 1/2 acres, more or less, and being the 17.7 acre tract inherited from O. R. Davis, less approximately 4 acres conveyed to the Lions Club in deed book 545 at page 59 and less approximately 1/2 to 1 acre to be retained by the seller on the Lions Club Road and being described as follows: Beginning at an iron pin 199.98 feet on the Lions Club Road and running thence N 30-30 W, 66 feet; thence S 59 W, 1,000 feet, more or less, to an iron pin; thence S 45 E, 288.5 feet to an iron pin; thence S 62 E, 615.8 feet; thence along the Lions Club property N 55-14 E, 605 feet; thence N 30-30 W, 573 feet.

'It is understood and agreed that an accurate survey shall be made and that based thereupon the purchaser shall pay the sum of $500.00 per acre for said property.

'The seller does hereby acknowledge receipt of $100.00 down, binding this contract, as part payment for the tract after same is conveyed and the method of payment will be as follows: the purchaser is desirous of cutting said property into lots and for each lot released by the seller to the purchaser the sum of $500 shall be paid which shall be applied on the total purchase price to be determined by the survey and total acreage.

'The seller does hereby grant unto the purchaser a right of way and easement for purposes of ingress and egress over the northern 15 feet of the tract retained by seller so as to connect this property with the Lions Club Road.

'It is understood by and between the parties to this contract that once the entire consideration has passed the seller will convey unto the purchaser any and all property not conveyed at that time and the seller will convey such lots as desired by the purchaser prior to the payment of the full purchase price provided the purchaser shall pay unto the seller the sum of $500.00 for each lot.

'Witness the hands and seals of the parties hereto binding ourselves, our heirs, successors and assigns this 23rd day of December, 1958.'

The complaint, dated August 27, 1959, after alleging that, except for the payment of $100 made when the contract was signed, the defendant had paid the plaintiff nothing, proceeds as follows:

'IV. That the plaintiff is informed, believes and alleges that said contract is so vague, uncertain, and does not sufficiently identify and describe the subject matter of said contract and sale, and has no limitation as to time of performance that it is unenforceable, invalid and void; that an unreasonable time has elapsed since the execution of said contract and plaintiff alleges that she is entitled to have said instrument, which is a cloud upon her title, cancelled and surrendered; that the plaintiff has no adequate remedy at law to remove said cloud or to enforce disaffirmance of said contract.

'V. That the defendant has entered upon, and threatens to continue to trespass upon her property for the laying out and cutting of streets and roads on said property under this invalid and void contract, and unless restrained and enjoined he will continue to do so.

'VI. That the plaintiff has been damaged in the sum of fifteen hundred ($1500.00) dollars less the one hundred ($100.00) dollars paid by the defendant at the time of the execution of said alleged invalid and void contract.

'Wherefore plaintiff prays:

'1. That a Rule to Show Cause do issue requiring defendant to show cause, if any he has, why he should not be restrained from entering upon her property.

'2. That the court do issue an order that the contract signed on the 23rd day of December, 1958, be declared invalid and void and surrendered.

'3. That the plaintiff have judgment against the defendant in the sum of one thousand four hundred ($1,400.00) dollars.

'4. For the costs of this action.'

The record before us makes no mention of any answer to this complaint. It appears that on August 27, 1959, the court, upon consideration of the complaint, issued a temporary restraining order and a rule requiring the defendant to show cause on September 1, 1959, why an injunction pendente lite should not issue; and that the defendant filed a return to the rule, requesting that the temporary restraining order be revoked and the temporary injunction refused, upon the following grounds:

'1. The contract to purchase is valid and binding on both parties.

'2. That the contract shows on its face that it is a binding contract to purchase real estate and time is not of the essence. The attached affidavits substantiate that time was not of the essence.

'3. That W. R. Cordell, the purchaser, acted with due diligence and was performing the contract within a reasonable time.

'4. That the acts of the plaintiff in refusing to permit the surveyor to complete the survey and applying for this temporary restraining order is delaying the completion of this contract.

'5. That under the conditions and circumstances surrounding this transaction equity should require plaintiff to carry out her portion of the agreement.'

The affidavits referred to will be discussed later; they were by the defendant Cordell, Clifford C. Jones, and J. Mac Richardson. The agreed statement in the transcript is to the effect that 'the matter came on to be heard by the County Judge on the merits on November 6, 1959'; that testimony of the defendant was not transcribed, but was in accord with his affidavit before mentioned; that Mr. Jones and Mr. Richardson submitted their affidavits, before mentioned, as their testimony; and that the hearing was then adjourned to November 23, 1959, at which time the plaintiff's affidavit (to which we shall shortly refer) was accepted as her testimony, and her daughter, Mrs. Wyatt, testified orally. We summarize below the evidence thus presented to the trial court.

W. R. Cordell, the defendant: That he has been engaged in the real estate and contracting business for about thirteen years, during which time he has purchased many lots in Greenville County, has developed some subdivisions, and has built and sold numerous homes. That for about two years prior to the transaction here involved Mrs. Davis had been coming to defendant's office, trying to sell the property to her nephew for $500 per acre; and that shortly before Christmas, 1958, the nephew having declined to purchase it at that price, Mrs. Davis and her daughter Mrs. Wyatt came to defendant's office and urged him to purchase it, saying that they needed $100 for the Christmas holidays. That defendant agreed to purchase the property and to pay for it as provided in the contract attached to the complaint. 'That Mrs. Davis told him that she did not want all of the money paid at one time because of income tax she would be required to pay and that she preferred to have the money coming in at various times in accordance with the agreement in order that she might live on the money.' That defendant engaged an attorney, gave him the information concerning the oral agreement between the parties, and asked him to draw the contract accordingly; that on the day of its execution Mrs. Davis and Mrs. Wyatt arrived at the attorney's office before the defendant; that upon defendant's arrival the attorney read the contract and all agreed to it; and that thereupon it was signed and defendant made the cash payment of $100 which up to the time of the hearing on November 6, 1959, plaintiff had not repaid or tendered to him. That shortly after Christmas, 1958, defendant met with Mr. C. C. Jones, a civil engineer, on the property and, Mrs. Davis having given defendant a plat of it dated October 6, 1918, Mrs. Davis' daughter, Mrs. Wyatt, went over the property with Mr. Jones and pointed out all corners to him. That thereafter in July, 1959, Mr. Jones not having completed his survey despite defendant's urgings, defendant engaged another surveyor, Mr. J. Mac Richardson, who, according to defendant's information, went to the property on August 27, 1959, to survey it, but was stopped by Mrs. Davis. That had Mrs. Davis not stopped him, Mr. Richardson could have completed the laying out of this property in time to have submitted it to the Planning and Zoning Commission at its meeting on September 7, 1959, for its approval as required by law. That defendant has incurred considerable expense, and will incur additional expense and loss because of Mrs. Davis' acts; and that in May or June, 1959, when defendant had a Mr. Quinn use his bulldozer to clear up some trees and undergrowth to assist Mr. Jones with his surveying, neither Mrs. Davis nor her daughter made any complaint. That if the court will permit him to proceed, defendant will be able to pay Mrs. Davis...