Herlong v. Southern States Lumber Co.

• Decision Date: 15 February 1913
• Citation: 77 S.E. 219,93 S.C. 529
• Parties: HERLONG v. SOUTHERN STATES LUMBER CO.
• Court: South Carolina Supreme Court

77 S.E. 219

93 S.C. 529

HERLONG v. SOUTHERN STATES LUMBER CO.

Supreme Court of South Carolina

February 15, 1913

Appeal from Common Pleas Circuit Court of Barnwell County; R. E Copes, Judge.

Action by H. W. Herlong against the Southern States Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bates & Simms, of Barnwell, Mordecai & Gadsden and Rutledge & Hagood all of Charleston, for appellant. J. O. Patterson, of Barnwell, for respondent.

FRASER J.

This was an action by the plaintiff respondent to recover six months' salary alleged to be due by the defendant appellant.

The plaintiff alleged that he had a contract with defendant to manage its mill and wood operations near Dunbarton, in this state, at an agreed salary of $3,000 per annum, payable monthly in installments of $250. The contract was made on the 4th day of May, 1910, and on the 10th day of November, 1910 the defendant discharged the plaintiff. The answer contained a general denial for a first defense. The second defense is as follows: "(2) That the plaintiff was in the employ of the defendant, and upon the 10th day of November, 1910, the employment was terminated by defendant, the plaintiff's service being no longer desirable, he having failed throughout in the performance of his duties under said employment; and since said termination, if plaintiff has been idle, it has not been through any fault of this defendant, but by reason of plaintiff's fault or misfortune, he having become incapacitated for labor by reason of illness or otherwise."

The jury found for the plaintiff for $1,500, but the verdict was reduced by the presiding judge to allow credit to the defendant for some time (about two weeks) when the plaintiff was sick and could not work. Judgment was rendered for the reduced amount, and the defendant appealed.

There are three exceptions, which will be considered in their order.

Exception 1: "Because his honor erred in permitting plaintiff to testify orally as to a contract and to the interlocum occurring previous to the execution of the written contract, it being admitted that there was a written contract; whereas, his honor should have held that the written contract was the only contract in the case, except such oral enlargement of the same which may have been made subsequent to the execution of the said written contract."

When the plaintiff was on the stand, he was asked if the contract was in writing. He answered that it was partly in writing and partly verbal. The defendant introduced the following:

"Southern States Lumber Co., Pittsburg, Pa. Mr. H. W. Herlong, Dunbarton, S. C.-- Dear Sir: The writer returned home this morning, and after conferring with Mr. Flint and Mr. Erving concerning our proposed deal with you, we have decided to accept your proposition, which was to accept the managership of this property, having charge of mill and woods operation, under the general direction of the officers of the company in Pittsburg, for one year, at a salary of $250 per month. The administration of the company's affairs to be along the lines which I talked of with you when at Dunbarton on Saturday. I will be glad to have you report to Dunbarton promptly and take charge of affairs there, and will write you more fully regarding various matters that will need attention there to-morrow. I have written this letter in duplicate, and if you will kindly indorse on one copy of it your acceptance of the

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