Ellison v. Parts Distributors, Inc.
| Decision Date | 07 May 1990 |
| Docket Number | No. 1533,1533 |
| Court | South Carolina Court of Appeals |
| Parties | Gene R. ELLISON, as Trustee, Respondent, v. PARTS DISTRIBUTORS, INC., and Marion T. Burnside, Jr., Appellants. . Heard |
Harry A. Swagart, III, and James H. Lengel, both of Swagart & Lengel, Columbia, for appellants.
Mark S. Barrow, of Collins & Lacy, Columbia, for respondent.
Respondent, Gene R. Ellison, as Trustee, sued for payment on a promissory note issued by appellant, Parts Distributors, Inc., and guaranteed by appellant, Marion T. Burnside, Jr. Following a jury verdict in favor of Ellison, Parts Distributors and Burnside appeal alleging various errors by the trial judge. We reverse and remand.
The record before us reveals that Burnside borrowed money on behalf of Parts Distributors through Ellison, who was trustee for an undisclosed lender. The principal sum borrowed under the note was $18,915.75. Burnside made a substantial payment in November of 1981 leaving a principal balance of $8,607.78. Burnside testified that in 1982 he paid the loan with a cash payment and the cash payment was at Ellison's request. He stated he took the cash in an envelope to Ellison's office and left it with a female employee. Upon returning to his business, he informed his bookkeeper he had paid the money to Ellison and she told him he needed to get a receipt. He further testified he later called Ellison to insure he had received the money and to request a receipt and that Ellison acknowledged receipt of the money stating that "he did not have the papers on his desk to send to me at that time but he would get them and send them to me." Burnside's bookkeeper corroborated his testimony regarding their conversation as to the cash payment.
Ellison denied that he or anyone in his office ever received a cash payment from Burnside. Ellison further presented the testimony of others who stated they worked in his office during the time of the alleged payment and they never received a cash payment from Burnside.
On July 17, 1986, Ellison made a written demand for payment of the loan. Ellison testified he waited until 1986 before writing to Burnside because he understood Burnside was having a cash flow problem and, for some reason, that particular file was closed in his office.
Following a jury verdict for Ellison, counsel for Parts Distributors and Burnside made various post trial motions which the trial judge denied. Counsel specifically moved for a new trial on the grounds that the court failed to charge the jury on certain requested instructions and failed to allow inquiry into the identity of the lender and the fiduciary duties of Ellison as trustee.
Appellants first contend the trial judge erred by refusing to give a general jury charge on circumstantial evidence and inferences. They further allege error in the denial of the following specific charges: (1) Payment may be proved by circumstantial evidence; (2) Any circumstance which tends to make the proposition of payment more or less probable is relevant and may be considered by the jury; (3) Payment may be established by indirect evidence and without fixing the time, place or method of payment; (4) Delay in asserting a claim for a considerable period of time is circumstantial evidence of payment sufficient to warrant an inference of payment, when considered with other circumstances.
It is well settled that jury instructions should be confined to the issues raised by...
To continue reading
Request your trial
-
State v. Hughey
...a trial judge's refusal to give a requested jury charge must be both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct.App.1990). The trial judge's jury charge in the instant case is not reversible error because it adequately expressed the curr......
-
Ravan v. Greenville County
...for failure to give a requested charge, the refusal must have been both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 301, 395 S.E.2d 740, 741 (Ct.App.1990). The extent to which the common law recognizes strict liability is limited to a few narrowly defined c......
-
State v. Burkhart
...reversal, a trial judge's refusal to give a requested charge must be both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct.App.1990). This Court recently clarified the State's burden when a defendant raises self-defense: In Wiggins, we specifi......
-
Kennedy v. Griffin, 3743.
...to operate an automobile upon a public highway). 8. Gulledge, 328 S.C. at 510, 492 S.E.2d at 819. 9. Ellison v. Parts Distribs., Inc., 302 S.C. 299, 301, 395 S.E.2d 740, 741 (Ct.App.1990). 10. See supra note 11. Field v. Gregory, 230 S.C. 39, 44, 94 S.E.2d 15, 18 (1956); see also State v. W......