Griffith v. Newell

• Decision Date: 24 June 1904
• Citation: 48 S.E. 259,69 S.C. 300
• Parties: GRIFFITH, Supt. of State Penitentiary, v. NEWELL et al.
• Court: South Carolina Supreme Court

48 S.E. 259

69 S.C. 300

GRIFFITH, Supt. of State Penitentiary, v. NEWELL et al.

Supreme Court of South Carolina

June 24, 1904

Appeal from Common Pleas Circuit Court of Anderson County; Dantzler Judge.

Action by D. J. Griffith, superintendent of the State Penitentiary, against A. T. Newell and L. N. Geer. From a judgment for defendants, plaintiff appeals. Affirmed.

Breazeale & Rucker, for appellant. Bonham & Watkins, for respondents.

JONES J.

The plaintiff brought this action against defendant Newell, as principal, and defendant Geer, as surety, for breach of a bond given to secure performance of Newell's contract with plaintiff--successor, W. A. Neal--as superintendent of the South Carolina Penitentiary, for the hire of convicts for three years-- 1899, 1900, 1901. The balance claimed to be due was $169.03, for hire of 14 convicts and salary of guard for the months of November and December, 1901. As one of their defenses, defendants alleged, as a set-off, damages to the extent at least of the amount claimed in the complaint resulting from plaintiff's alleged breach of his contract to furnish 20 convicts each year. The contract, executed January 2, 1899, contained the following, as one of the stipulations on the part of the superintendent of the penitentiary: "First. That the party of the first part agrees to hire to the party of the second part twenty (20) convicts to be worked at his or their place of business situated in Anderson County, for the purpose of doing general farmwork at the stipulated price of six and fifty one-hundredths dollars per month per capita, for the period of three years from the date of this contract, wages to be paid monthly. If, however, at the beginning of the second and third years, respectively, a sufficient number of convicts are not available, then the contract to be subject to such change as the party of the first part may direct: Provided, That notice be given to the party of the second part at the November meeting of the board of directors, of any intended change." The trial resulted in a verdict and judgment for the defendants.

It is excepted that the court erred in not permitting plaintiff, in reply, to state whether "Newell paid for the convicts for the years 1899, 1900, and the greater part of 1901." We think there was no error in this. The only breach of the contract alleged in the complaint was the failure of defendants to pay for the hire of convicts for November and December, 1901. It is contended, however, that the evidence was competent, in reply, to show that Newell had, by receiving and paying for less than 20 convicts, waived that stipulation in the contract authorizing the superintendent to furnish less than 20 convicts after the first year "Provided, That notice be given to the party of the second part at the November meeting of the board of directors of any intended change." There was no evidence that any such notice had been given, although there was evidence that in January, 1901, the secretary of the board of directors of the penitentiary informed Newell of the board's action, to the effect that they could not furnish the full number of convicts his contract called for, but would do it later if possible. The plaintiff's action was based upon the contract, and the complaint contained no allegation that defendants had waived any of its terms. The contract provided the manner in which its terms might be changed so as to permit the superintendent to furnish less than 20 convicts the second and third year. It is true, this stipulation might be waived by defendants; but it is familiar law that in order for one party to recover of another party upon a mutual, dependent contract, the plaintiff must allege performance of all conditions precedent on his part, or, if he relies upon a waiver of any such stipulations, or excuse for nonperformance on his part, he must allege such waiver or excuse. 4 Ency. Pl. & Pr. 628 et seq.; 9 Cyc. 719; section 183, Code Civ. Proc. Neither in the complaint, nor by way of reply to defendants' set-off, is there any allegation of such waiver. The foregoing statement of the law is not inconsistent with the rule as announced in Copeland v. Assurance...