Fitchette v. Sumter Hardwood Co

• Decision Date: 12 April 1928
• Docket Number: (No. 12427.)
• Citation: 142 S.E. 828
• Parties: FITCHETTE et al. v. SUMTER HARDWOOD CO. et al.
• Court: South Carolina Supreme Court

142 S.E. 828

FITCHETTE et al.

v.SUMTER HARDWOOD CO. et al.

(No. 12427.)

Supreme Court of South Carolina.

April 12, 1928.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Sumter County; John S. Wilson, Judge.

Action by George P. Fitchette and another. Individually and as George P. Fitchette & Son, against the Sumter Hardwood Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Lee & Moise, of Sumter, for appellants.

Epps & Levy and Harby, Nash & Hodges, all of Sumter, for respondents.

STABLER, J. This is an action for damages on account of an alleged libelous letter written by C. F. Korn, president of Sumter Hardwood Company, to J. C. Bruton, of Columbia, S. C, under date of February 23, 1924; a copy of the letter being sent to W. A. Clark, of Columbia, S. C.

The plaintiffs are partners engaged in the logging business. In 1921 they entered into a contract with Sumter Hardwood Company, for the logging of certain timber, which contract continued in effect, with minor changes, until December, 1923. At the time of its expiration the Fitchettes were indebted to the company, and the company agreed to take over in the settlement certain equipment and supplies belonging to them, but a disagreement arose between the parties as to the value to be placed upon these articles and as to certain items of charge and credit. This controversy resulted in a lawsuit, instituted by the company, wherein the Fitchettes set up certain counterclaims, and which was still pending at the time of the trial of the present suit.

Early in the year 1924 the Fitchettes entered into negotiations looking to the purchase and logging of certain timber in Richland county, known as the Segars timber, which was under contract of sale to J. C. Bruton of Columbia, S. C., subject to certain incumbrances. Bruton had previously made a contract with Sumter Hardwood Company to sell it certain of the output of logs from the Segars timber at the price of $14 per thousand feet. Bruton was indebted to the Carolina National Bank, which held a mortgage of the timber, and also to W. A. Clark, then chairman of the board of directors, and formerly president, of the bank. For financial reasons Bruton was unable to perform his Segars contract, and his negotiations with the Fitchettes followed. In order that the proposed sale to the Fitchettes might be consummated, satisfactory arrangements with the parties having an interest in the Segars timber were sought to be made, and on February 4, 1924, Clark wrote to the Hardwood Company, advising that in his opinion Bruton was utterly unable to execute the Segars contract, but that Bruton thought he could Interest another party in the purchase of the timber included in the company's contract, and so render the standing timber on the Segars tract available, and inquiring whether the company would be willing to cancel its contract with Bruton, so as to allow him to contract with the other party. About ten letters on the sub-ject were exchanged between the company and Clark.

On February 12, the company, through Korn, its president, wrote Clark as follows:

"If we can enter into some arrangement whereby we can be sure of obtaining a million feet or more of this class of raw material for our Sumter mill, we believe we would be willing to give our consent to letting other parties operate this timber."

On February 13, Clark wrote Korn, advising that he had prepared a form of contract to be executed by Bruton and the parties with whom he wished to contract for the sale of the timber, and inclosed a copy of a section of the contract providing that the "party of the second part" should sell and deliver to Bruton, or such other person as he might name, 1, 000, 000 feet of logs at the current price, etc.

In a letter dated February 16, the company, through Korn, wrote Clark as follows:

"Before closing the detail of any new arrangements, we would like to discuss it with all interested parties. A contract is of little value, unless both sides have the ability and the inclination to perform their respective parts. If the parties are not entitled to our confidence, we prefer to let the matter stand as it is. * * * We stated to you that nothing could be gained by talking to Mr. Bruton alone, and we wanted to know who we were dealing with. Where the questions of price, grade, measurement, etc., are to be daily dealt with, we must know who we are trading with. If the parties are acting in good faith, why should they wish to remain concealed in the background, while these negotiations with us are going on?"

By a contract dated February 14, Bruton attempted to sell the Segars timber to the Fitchettes, the contract containing the provision that the Fitchettes should sell and deliver to Bruton, or such other person as he might name, 1, 000, 000 feet of the logs at the current price at the date of sale and shipment. On February 19, Clark wrote a letter to the company, detailing the circumstances relied upon as showing Bruton's inability to deliver Segars timber to the company in accordance with his contract, and advising, at least by inference, that Bruton had made a contract of sale of the timber, adding:

"Under all the circumstances, I believe that your interest has been conserved and protected, and I trust that it will meet with your approval."

On February 20, the company, through Korn, wrote Clark as follows:

"As we stated before, we are willing to cooperate with Mr. Bruton, but we want some assurance of good faith before we waive any of our rights under the Bruton contract. If we consent to take 1, 000, 000 feet of logs and release Bruton from further obligation, we want to know who is going to furnish these logs to us; also at what price and when. We have asked for this information before, but for some reason the information is withheld. Bruton has failed to perform his contract, and we are writing him to-day as per inclosed copy of letter."

On the same day, the company, through Korn, wrote to Bruton as follows:

"Information has just reached us that you have arranged with some parties to operate your upper timber tract. At Mr. Clark's request, we sent Mr. Barringer over to your office for the express purpose of meeting the parties and talking it over. For some unknown reason, the parties did not meet us, nor have you seen fit to tell us who they are. We are disposed to co-operate with you in your efforts, but we want assurance of good faith before we consent to any change in our original contract with you. If we consent to any modification of your contract, we must know who the parties are that are going to deliver us logs; also at what price and when deliveries are to be made."

In a letter dated February 21, Bruton wrote the company as follows:

"Your letter of February 20th just received, and will say in reply that the parties that I am trading with are Fitchette & Son. You know these people well enough to be assured that they will get the 1, 000, 000 feet of logs. So far as I was concerned, I had no objections to you knowing who the parties were, but they told me for certain reasons they did not want me to give their names, and I promised that I would not say anything as to that. This is the reason that I did not give their names, and then, too, I did not see that it would be essential to you, as you were trading with me, and not with them."

On February 23, the company, through Korn, wrote to Bruton the alleged libelous letter, sending a copy thereof to Clark. This letter is as follows:

"Referring to your letter of February 21, advising us that Fitchette & Son are the parties to whom you have sold your timber: This is the first information we have had as to who we are expected to deal with in the delivery of logs to us. We are willing to co-operate with you in any plan that will be of our mutual advantage, but our interests must be served as well as yours. It will not be satisfactory to us to deal with Fitchette & Son. They have fallen down on previous contract we had with them. Their account was much overdrawn when they left us, and when it came time for a settlement they totally disregarded their contract. We have lost confidence in them, and do not think they have either the ability or the inclination to carry out any new contract that might be made with them. If you let them go to work getting out pine, stave timber, and hardwood sawlogs off your upper tract, we want every log that will come under our contract dated October 16, 1922, and which is later affirmed and concurred in by the Carolina National Bank in an agreement dated April 30, 1923."

The plaintiffs alleged in their complaint that this letter was written in malice, and that it— "imputed to the plaintiffs generally, and in their particular business, dishonest and fraudulent practice, motive, and intention, and a want of integrity; sought to bring them, and the manner in which they conducted their business, into disrepute; sought to destroy their reputation for integrity and fair dealing; sought to impair confidence in their character and ability in the conduct of their particular business; and all of which was calculated and intended to injure the credit of the plaintiffs, and was particularly injurious and hurtful to the reputation, character, and standing of plaintiffs as loggers, purchasers, and handlers of timber; and sought to injure the plaintiffs and defeat them in their purchase of said timber."

The defendants by their answer set up several defenses, which are thus summarized by their counsel:

"(1) A general denial; (2) that the statements in the letter were 'not libelous, but were made in absolute good faith and without malice, ' that said statements 'correctly and frankly expressed the experience and opinion which defendants had sustained and formed, ' and were true, and that said letter was written 'bona fide in the discharge of a legal or moral duty rendered necessary by the exigencies and circumstances of the...