Jackson v. Frier

• Decision Date: 11 July 1928
• Docket Number: 12483.
• Citation: 144 S.E. 66,146 S.C. 322
• Parties: JACKSON v. FRIER.
• Court: South Carolina Supreme Court

144 S.E. 66

146 S.C. 322

JACKSON v. FRIER.

No. 12483.

Supreme Court of South Carolina

July 11, 1928

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

Action by Fannie Jackson, administratrix, against W. F. Frier. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Watts C.J., and Blease, J., dissenting

Williams Croft & Busbee, of Aiken, for appellant.

Hendersons & Salley and W. M. Smoak, all of Aiken, for respondent.

COTHRAN J.

The only matter which we shall discuss in this case is the assignment of error to that part of the circuit judge's charge in reference to the burden of proof. This requires a somewhat detailed statement.

The action is in claim and delivery for an automobile, instituted in December, 1919; upon a former trial a verdict was directed in favor of the plaintiff; upon appeal that judgment was reversed and a new trial ordered (118 S.C. 449, 110 S.E 676); thereafter the plaintiff died and his wife, Fannie Jackson, as administratrix of his estate, was substituted as plaintiff. The case was tried before his honor, Judge Townsend, and a jury at March term, 1926, resulting in a verdict for the plaintiff for the value of the car $250 and $500 damages. The defendants has appealed.

The issue between the parties plainly appears from the complaint and answer: It is alleged in the complaint that in November, 1919, the intestate, D. A. Jackson, was the owner of a certain described automobile; that at the time of the commencement of the action he was the owner and entitled to the possession of the car; that in November, 1919, he parted with the possession of the car to the defendant under these circumstances; "that he (the defendant) represented himself as the owner of a tract of real estate which he by parol offered to sell to plaintiff, and to take the automobile on the purchase price thereof, and induced the plaintiff (D. A. Jackson) to allow him to try out the said automobile;" that the defendant "converted it to his own use and benefit and refuses to deliver the same to plaintiff, notwithstanding due demand has been made therefor." (We read between the lines, what is not distinctly averred, that the offer of the defendant to sell the land was not accepted by D. A. Jackson, who thereby became entitled to a return of the car committed by him to the defendant upon the condition above stated.)

The answer of the defendant contains a general denial of the plaintiff's title and right to possession, and an explanation of the circumstances under which the defendant acquired possession of the car as follows: That he and the plaintiff entered into a contract for the sale and purchase of a certain tract of land, and that the automobile was delivered by the plaintiff to the defendant as part payment of the purchase price of the land; that without legal excuse the plaintiff refused to comply with said contract, which the defendant stood ready and willing to do, and was not entitled to a return of the automobile which he had delivered under these circumstances.

The plaintiff, as shown, contended that he had never consummated the alleged contract and that the automobile was not to be considered as a payment thereon, unless the contract was duly closed and the defendant, after trying it, was satisfied with the automobile. The defendant on the other hand, contended that the oral contract for the sale of the land was actually completed, and that the car was delivered as part payment of the purchase price.

His honor, the circuit judge, very correctly stated the law to the jury, in conformity with the decision of this court upon the former appeal:

"The law is that, if a trade for land is agreed upon, and the purchaser makes a part payment upon the purchase money, and the seller is able, ready, and willing to carry out or perform the contract, the purchaser cannot recover back the amount paid by him. If the jury is satisfied from the evidence that the automobile described in the complaint was delivered by Daniel A. Jackson to the defendant as an agreed price in part payment for land under a contract which had been made and agreed to by both defendant and Daniel A. Jackson, and with intent to pass title to the automobile to defendant, and that defendant is able, ready, and willing to carry out and perform such contract, then this action of claim and delivery would not lie, and your verdict would be for defendant, if you so found."

As to the matter of the burden of proof, his honor charged the jury as follows:

"The burden is upon the defendant to prove by the greater weight of the evidence that such contract or trade in all its terms was agreed upon by both parties, and that the automobile was turned over to defendant as part payment in the trade, and that he (the defendant) was ready, able, and willing to convey the land and carry out the trade. If defendant proves such facts, your verdict should be in favor of defendant in the form which I have stated."

And:

"*** Where the defendant admits that the plaintiff originally owned the automobile, and claims to have acquired the automobile from the plaintiff or plaintiff's intestate under a contract or agreement with intestate, then in this case the burden of proof as to showing that defendant was entitled to hold it under that trade would be upon the defendant."

In our opinion his honor was in error in so charging and that the error demands a reversal of the judgment.

While it is not controlling, it is of interest to note that manifestly counsel for the plaintiff conceived that the burden was upon them; they assumed it by offering in chief the testimony of the plaintiff (taken at the former trial), of his son Grover Jackson, of the outside witnesses New, Riley, Dubose, and Berkeley, tending to establish the facts that no trade had been consummated and that the defendant was to try out the car and return it in good shape if the negotiations should fall through.

In reply the defendant offered evidence to the effect that Jackson had declared to Wharton and Moyer that he had traded with defendant; that he was seeking the services of a surveyor to run the lines; that he was showing his son-in-law, who was expected to work it, over the land; that he applied to the bank for a loan with which to pay for the land; that he was offering $100 to be let out of the trade; and the letter which he sent to the defendant, dated November 10, 1919 (written by his counsel, Mr. Henderson), "disaffirming and rescinding" "the understanding with you to purchase a tract of land from you for $12,000. *** I left with you my automobile worth at least $1,000 on the understanding."

The issue of fact whether the trade was actually consummated and the car delivered to the defendant as part payment of the purchase price was clearly one for the jury; it was the turning point in the case; and the question upon whom the burden rested was one of supreme importance. Was it upon the plaintiff to show that the delivery of the car was conditional upon the consummation of the trade and the satisfaction of the defendant with the car, or upon the defendant to show that the trade had been consummated orally and that the car was delivered as part payment of the agreed purchase price?

As is said in 22 C.J. 69:

"The rule as to the burden of proof is important and indispensable in the administration of justice, and constitutes a substantial right of the party upon whose adversary the burden rests. It should therefore be jealously guarded and rigidly enforced by the courts."

The view of his honor, the circuit judge, was that, as at one time the title to the car was admittedly in the plaintiff, the burden was cast upon the defendant to show that it had passed out of the plaintiff into the defendant; in other words, that, although the plaintiff may come into court alleging that at the time of the commencement of the action he had the legal title to the chattel and is entitled to the immediate possession of it, he may, by showing simply that at a time prior thereto he did have the legal title and was entitled to the possession, cast the burden upon the defendant to prove a negative by showing that at the time of the commencement of the action the plaintiff did not have the legal title, but that it was in him (the defendant).

We do not think that this is the law.

The defendant's answer contains a general denial and also a specific statement of the grounds supporting the defendant's claim of title.

In 23 R. C. L. 932, it is said:

"It is usually held that the general denial in an action of replevin puts in issue not only the plaintiff's right to possession, but his title to the property replevied. Accordingly, the defendant may show under that plea that the plaintiff is not the owner of the property replevied, by showing that he himself is the owner, or that the title is in a third person."

And at page 934:

"Generally speaking, in an action of replevin, the right to the possession of the property at the time suit is brought is the only matter in controversy, and the only question that can be tried and determined therein. *** The burden of proof is upon the plaintiff in replevin to show that at the time of the commencement of the action he was the owner, that he was entitled to the immediate possession of the property, and that the defendant wrongfully detains it. And this burden does not change where the answer pleads property in the defendants." (Emphasis added.)

The distinction is between affirmative defenses, which must be alleged, as to which the defendant assumes the burden of proof, and defenses which are available to the defendant under a general denial, as to which he does not assume that burden. We do not think that it can be...