Halsey v. Minnesota-South Carolina Land & Timber Co.

Decision Date28 September 1934
Docket Number13913.
Citation177 S.E. 29,174 S.C. 97
CourtSouth Carolina Supreme Court

Appeal from Ninth Judicial Circuit Court of Charleston County; C. C Featherstone, Judge.

Action by Alfred O. Halsey against the Minnesota-South Carolina Land & Timber Company and another. Judgment for plaintiff, and named defendant appeals.


Legare Walker, of Summerville, L. D. Lide, of Marion, and G. L Buist Rivers, of Charleston, for appellant.

Mitchell & Horlbeck, H. L. Erckmann, and J. C. Long, all of Charleston, for respondent.

BONHAM Justice.

In an opinion relating to this case, 168 S.C. 18, 166 S.E. 626 627, Mr. Acting Associate Justice Cothran remarked: "It seems difficult for this case to find a landing field." A narrative of its history justifies the quoted statement, and shows that it has sailed still further in its effort to find a resting place.

The case was begun in 1927 in the court of common pleas for Charleston county. On motion of the defendant it was removed to the District Court of the United States for the Eastern District of South Carolina. There a demurrer to the complaint was sustained, and that decision was affirmed by the Circuit Court of Appeals. 28 F. (2d) 720. In January, 1929, the plaintiff brought action in the court of common pleas for Charleston county against Minnesota-South Carolina Land & Timber Company, which we shall call the Timber Company, and R. L. Montague. The case was tried in 1930, and the presiding judge directed a verdict for the defendants. On appeal this judgment was reversed and the case sent back for rehearing. 162 S.C. 281, 160 S.E. 843. Pending the disposition of this appeal the defendant R. L. Montague died. The Timber Company filed petition for rehearing, which was denied. The Timber Company then filed its petition in the court of common pleas for Charleston county for the removal of the case to the federal court for the Eastern District of South Carolina on the ground of diverse citizenship. The petition was granted. On motion of plaintiff the federal court remanded the case to the court of common pleas for Charleston county for trial. 54 F. (2d) 933.

Thereupon, in January 1932, the defendant, the Timber Company, moved the court of common pleas for an order to remove the place of trial from Charleston county to Dorchester county. The motion was denied, and on appeal the Supreme Court, in November, 1932, affirmed the order. 168 S.C. 18, 166 S.E. 626. The case finally came to trial before Judge Featherstone and a jury in April, 1933, and resulted in a verdict for the plaintiff. This appeal followed.

There are forty-five exceptions. Some of them relate to matters which, in our opinion, have been disposed of by former decisions in the case. Some of them are duplicates in relation to alleged errors in the admission, or rejection, of testimony, and some of them relate to issues of fact made by the conflicting testimony, which issues are within the special province of the jury, and in the determination of which this court is prohibited, by the inhibition of the Constitution, from taking part. Appellant's counsel have elected to discuss the appeal under seven heads, and we shall adopt that plan of consideration of the appeal.

The complaint states its grounds of action at length, but we shall condense it as much as possible.

It alleges a contract between plaintiff and the Timber Company, which was reduced to writing and signed December 31, 1923, in which contract plaintiff was buyer and the Timber Company was seller of a large body of timber and timber rights in Orangeburg county, described in the contract. It is alleged that in the negotiations leading up to and in the consummation of the sale and purchase, R. L. Montague was the agent of the Timber Company. That Montague was represented in some of the transactions relating to the sale by C.J. Baker. That Baker, when he was showing the timberland to plaintiff, had a plat of the lands which he exhibited to plaintiff; that during the negotiations and prior to the execution of the contract, the defendants jointly and concurrently represented to plaintiff that the two tracts described in the contract as the Hutto and Wiggins tracts contained 19,215,000 feet of merchantable timber owned by Minnesota-South Carolina Land & Timber Company under its deeds; that these statements were made positively by defendants, with the intention and for the purpose of inducing the plaintiff to rely upon them in making the purchase represented by said contract; that plaintiff in reliance upon these statements entered into the said contract, by which he agreed to pay the Timber Company the sum of $150,000; this price was based on the joint and concurrent representations of the defendants, or on the basis of about $7.28 per thousand feet for the timber covered by the contract. That plaintiff relying on the representations of the defendants, and having confidence in them, purchased the timber and timber rights set forth in the contract and paid therefor the sum of $150,000, and received from the Timber Company a deed therefor dated February 4, 1924, delivered February 15, 1924, which deed contained the usual covenants of warranty; that in this transaction R. L. Montague was the agent of the Timber Company, and received from the Timber Company a commission for his services in connection with the sale; that plaintiff went to the expense of locating a mill to cut the timber, and has practically cut the merchantable timber on the Hutto and Wiggins tracts, and after careful measurements and investigation finds that these tracts, at the time of his purchase of them, contained only some 12,652,194 feet of merchantable timber; that the statements and representations made by defendants to plaintiff were false; that they related to matters peculiarly within the knowledge of said defendants, and on information and belief the plaintiff alleges that said representations were known by defendants to be false, and were made by defendants with the intent to deceive plaintiff, and were made recklessly and without regard to the truth thereabout, and the true facts were purposely concealed by defendants from plaintiff; that these false representations were relied on by plaintiff; if he had known the true state of facts he would not have purchased the timber, or paid the price set out in the contract; that there is a gross discrepancy, or shortage, between the amount of timber covered by the contract of purchase and the amount actually contained in the Hutto and Wiggins tracts of at least 6,861,906 feet of timber at $7.28 per M feet, amounting to $47,770.68, which timber plaintiff paid for and did not receive, and by reason thereof he has sustained loss of the amount named, with interest from the date of the deed, to wit, February 4, 1924. The allegations relating to the cost of locating the equipment for manufacture and the cost of manufacturing the lumber have been stricken from the complaint and need not be repeated. That plaintiff is entitled to punitive damages.

The answer of the Timber Company is: A general denial; admission of the corporate capacity of the Timber Company and of the residence of R. L. Montague in Charleston; denial of paragraphs II, IV, V, VII, VIII, IX, X, XII, XIII, XIV, and XV. Admits allegations of paragraph 3 of the complaint, except that the agreement is not therein set out in full; it attaches a copy as Exhibit A. Admits so much of paragraph VI as alleges that plaintiff received a deed for the timber rights set forth in the agreement of December 31, 1923, the deed being dated February 4, 1924, and that the deed contains a covenant of warranty as to it, but alleges that the warranty was only as to the timber and timber rights covered by the deed; admits the payment by plaintiff of the purchase price of $150,000; admits that its codefendant R. L. Montague received a commission from it, but alleges that the services rendered consisted solely in bringing the parties to the said sale together; that said R. L. Montague was not the general agent of the Timber Company, was not charged with the sale of its lands or timber, and had no authority from it to make any statements or representations, or statements to, or agreements or contracts with any person whatsoever in regard thereto, or any agreement or contract with plaintiff, if he did so, which defendant denies, in regard to the sale evidenced by the contract of December 31, 1923. It denies that there was any "amount" of timber represented by it as alleged by Paragraph XI of the complaint; denies all the allegations of that paragraph.

The brief of appellant's counsel contains the following:

"Questions Involved.

The exceptions in this case are numerous, and they involve many important questions, which cannot be properly stated very briefly. But to aid the Court as much as we can we have stated the Questions Involved in a very curtailed and restricted manner, and shall argue them under such general headings. However, in the argument, in each instance for a clearer understanding of the Exceptions we shall, after each heading give a more definite statement of the Questions Involved in this case and presented by the Exceptions."

"1. Did the Court err in admitting testimony varying the written contract which shows that the purchase price for all four tracts of timber including the Breeland tracts, was the lump sum of $150,000.00.

2. Did the Court err in admitting testimony as to alleged statements, oral and written, by Montague and Baker, more than two years after the transaction, there being no evidence that they were then in any respect agents of the Company, even if they were such agents at the time of the transaction?

3. Did the...

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