Kirkpatrick v. Hardeman

Decision Date19 December 1921
Docket Number(No. 10798.)
Citation110 S.E. 119
CourtSouth Carolina Supreme Court
PartiesKIRKPATRICK . v. HARDEMAN.

Appeal from Common Pleas Circuit Court of Greenville County; M. F. Ansel, Judge.

Action by J. W. Kirkpatrick against Isaac Hardeman. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action for damages alleged to have been sustained by the plaintiff on account of the refusal of the defendant to comply with his contract in regard to the sale of certain shares of stock.

The allegations of the complaint are as follows:

"I. That the plaintiff is a resident of the city of Greenville, state and county aforesaid, and that the defendant is a nonresident of the state of South Carolina, residing in the city of Charlotte, state of North Carolina, with property in the city of Greenville, state of South Carolina.

"II. That on October 25, 1919, defendant agreed to sell through his agents, Stone and Goldsmith, and the plaintiff agreed to buy, 100 shares of Watts Mills stock, second preferred, at the agreed price of $98.50 per share.

"III. That the defendant has failed and refused to comply with his agreement to sell said stock and still refuses to comply.

"IV. That after said agreement the market value of said stock greatly enhanced in value so that same became worth over $127.50 per share.

"V. That thereafter the plaintiff, by reason of the failure of the defendant to comply with his said agreement, was compelled to buy elsewhere the 100 shares of Watts Mills stock second preferred, and to pay therefor more than $127.50 per share.

"VI.. That, by reason of the failure of defendant to comply with his agreement as aforesaid, the plaintiff has suffered damages in the sum of $2,975.00."

The defendant denied the allegations of the complaint, and by way of defense alleged:

"That this action is founded upon a contract for the sale of certain shares of stock of th« value of more than $50, and that no part of said stock was accepted by the buyer or actually received by him, nor was anything given in earnest to bind the bargain or in part payment therefor, nor was any note or memorandum in writing made thereof, and signed by the party to be charged therewith or by any agent by him thereunto authorized."

W. B. Stone, a witness for the plaintiff, testified as follows:

"I was in business in Greenville in September, 1919, with Mr. Goldsmith in the firm known as Goldsmith & Stone; was engaged in buying and selling stocks, bonds, insurance, etc. During that time I had transactions with Mr. Hardeman. Received letter from Mr. Isaac Hardeman dated September 1, 1919, as follows:

" 'Charlotte, N. C, Sept. 1, 1919.

" 'Mr. W. B. Stone, Greenville, S. C: I wish to list the following stock and would thank you to let me know what the market price is today for same:

" '175 shares Duncan Mills, common.

" '100 shares Watts Mills, second preferred.

* * * [Signed] Isaac Hardeman.' "I wrote the following letter in reply:

'"Greenville, S. C, Sept. 3, 1919. "'Mr. Isaac Hardeman, Charlotte, N. C: Yours of the 1st inst., relative to the listing of your several shares of different stocks for sale.

" 'It gives us pleasure to give you the quotations on the market as it stands to-day; however, the market for certain stocks seems to be on the rise, hence these quotations are subject to change.

" '500 Watts Mills, second preferred, $96.00.

* * *

" 'I endeavored to get in touch with you over the phone to-day, but you were out of town.

" 'Will appreciate your calling me over phone at my expense to-morrow.

"'[Signed] Goldsmith & Stone,

'"By W. B. Stone.'

"In the letter dated October 21, 1919, in which I said 'relative to the 175 shares of Duncan Mills common and 100 shares Watts second preferred, ' I was referring to a phone conversation with him. His instructions over the phone were to sell the Duncan when it reached $130 a share and the Watts second preferred when it reached $98 per share. I was to sell the stock unless in the meantime I heard to the contrary. I did not hear to the contrary. I was not given instructions not to sell between this time and the time I sold. With reference to disposing of the stock, after I received the letter of September 1st listing several stocks which I answered by letter giving prices on that day. I tried to get him over the phone. The stock was active. Later I did get him over the phone, and talked with him especially about the Duncan and Watts second preferred. He told me that he wanted $98 per share for Watts and $130 for Duncan, and when they reached that I could sell. They had not reached that price then, and I asked him if he would give them to me firm, and he said 'Yes.' I. was to do nothing about the other stocks unless they became active; then I was to call him. I wrote a letter dated October 21st to confirm the phone conversation, and I heard nothing to the contrary. That letter was as follows:

" 'Greenville, S. C, Oct. 21. 1919.

" 'Mr. Isaac Hardeman. Charlotte, N. C: With reference to our conversation over the telephone a day or so ago. regarding the mill stocks you have listed with me for a sale. Relative to the 175 shares of Duncan Mills, common, and the 100 shares Watts Mills, second preferred, I understand that I am to sell the two stocks, when Duncan reaches $130.00 per share, and Watts, second preferred at $98.00 per share. The other stocks you have set no price upon, and upon any advance in the market I am to communicate with you before selling. However, as I understand, the price set on the Duncan and Watts is firm, and in event the market reaches the points stated, I can sell unless I hear from you to the contrary in the meantime.

"'[Signed] Goldsmith & Stone,

'"Per W. B. Stone.

"On or about October 25th I met Mr. Kirk-patrick. and he asked me about stocks. I told him I had 100 shares of Watts second preferred firm for which I wanted $98.50. The 50 cents was for commissions, the $98 was net for the stock. Kirkpatrick said that was higher than it was at the present time and he would go to the store and think about it and let me know in a few minutes if he wanted it. When he came I was not there, but when I returned I found a memorandum on my desk. The memorandum was as follows: 'Kirkpatrick will take 100 shares Watts second preferred at $98.50.'

"Then I wrote a telegram which I carried to the store, showed to Mr. Kirkpatrick, and then sent to Mr. Hardeman. I made a memorandum myself in regard to the matter on a scratch pad. I always made notations whenever I sold stock, the name of the buyer, when he bought, the price paid, and commission. When I showed the telegram...

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