Harper v. American Ry. Exp. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: WATTS, C.J.
• Citation: Harper v. American Ry. Exp. Co., 138 S.E. 354, 139 S.C. 545 (S.C. 1927)
• Decision Date: 11 April 1927
• Docket Number: 12186.
• Parties: HARPER v. AMERICAN RY. EXPRESS CO.

138 S.E. 354

139 S.C. 545

HARPER v. AMERICAN RY. EXPRESS CO.

No. 12186.

Supreme Court of South Carolina

April 11, 1927

Appeal from Common Pleas Circuit Court of Sumter County; W. H Townsend, Judge.

Action by J. W. Harper, trading under the name of J. W. Harper & Son, against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The exceptions are as follows:

"(1) Because his honor erred in not granting a nonsuit on the following grounds:

(a) Because the only reasonable inference to be drawn from the testimony was to the effect that plaintiff had been paid in full for any damages due to delaying construction work, or expense incurred on account of said delay; there being no evidence of any expense or damage other than that paid for by the defendant.

(b) Because the evidence showed conclusively that the voucher for $120 accepted by the plaintiff 'in full settlement of extra expense incurred due to delaying construction work salary of watchman two months at $60 per month at Florence S. C.,' was in accord and satisfaction.

(2) Because his honor erred in not directing a verdict on the following grounds:

(a) Because the evidence clearly showed that the plaintiff had been paid in full, and there was nothing further due him by the defendant.

(b) Because the evidence clearly showed that the voucher issued by the defendant in favor of the plaintiff for $120 was in accord and satisfaction.

(3) Because his honor erred in refusing defendant's motion for a new trial on the following grounds:

(a) Because the verdict is not supported by the evidence.

(b) Because the only inference to be drawn from all the testimony is to the effect that labor did not advance subsequent to the delay complained of, and plaintiff therefore suffered no extra expense on account of increase in expense of labor.

(c) Because the statement of S. S. Leonard, plaintiff's superintendent, on which the jury undoubtedly based their verdict, since the figures are the same even to the cents, was incorrect, and was admitted by Leonard, under oath, to be incorrect, that it did not represent extra costs due to delay.

(d) Because the complaint is based upon extra expense incurred, and all that the testimony shows is a mere possibility of some extra expense due to the fact it is more expensive to carry on building operations in the winter than in summer-and the voucher for $120, accepted by the plaintiff, clearly states that it is 'in full settlement of extra expense incurred due to delaying construction work, salary of watchman two months at $60 per month, at Florence, S. C.'

(4) Because the trial court erred in admitting in evidence, over objection of defendant, the following statement of S. S. Leonard, plaintiff's superintendent:

'Sumter, S. C., 6/27/24.

'Florence Building -Extra Cost of Labor.

American Railway Express Company to J. W. Harper & Son, Sumter, S. C.

Cement, foundation, and finishing, extra labor ..	$ 366 16
Brickwork, extra labor .............................	255 00
Carpenter work, extra labor ........................	553 00
Painting, extra labor ...............................	80 00
	---------
Total ........................................	$1,254 16

"'Extra bill is caused from the delay by suspending building operations by the company.

' [Signed] S. S. Leonard.'

The following written at bottom of page in Harper's handwriting: 'For additional supervision 4 months at $125.00 per month, $500.00, making a total of $1,754.16.'

The error being that said statement is a self -serving declaration and clearly hearsay as to the defendant ." Reynolds & Reynolds, of Sumter, for appellant.

Epps & Levy, of Sumter, for respondent.

WATTS C.J.

"This cause was begun by service of...