Kolb v. Nash, 18263
| Decision Date | 14 October 1964 |
| Docket Number | No. 18263,18263 |
| Citation | 245 S.C. 25,138 S.E.2d 417 |
| Court | South Carolina Supreme Court |
| Parties | Irene A. KOLB, Administratrix of the Estate of W. L. Kolb, Respondent, v. K. C. NASH, Appellant. |
Jennings & Jennings, Bishopville, for appellant.
Bryan & Bahnmuller, Sumter, Lane & Laney, Bishopville, for respondent.
This is an action on a written contract whereby K. C. Nash listed with W. L. Kolb, as selling agent or broker, a 600 acre tract of timber land in Darlington County. The listing was for a term of six months from March 27, 1962, and the contract provided for the payment of a commission of 10% to W. L. Kolb should the property be sold by anyone during this term. The consideration recited was the broker's 'advertising or otherwise using reasonable efforts to effect a sale.' After issue joined and before trial, Kolb died, and his administratrix was substituted as plaintiff. The case was tried to a jury, and all issues were resolved in favor of the substituted plaintiff by direction of the court. Nash appeals on exceptions which challenge the sufficiency of the evidence to establish plaintiff's right to a judgment as a matter of law, and which charge error in striking the affirmative defense of accord and satisfaction from the answer.
The complaint alleges that during the term of the contract and while Kolb was engaged in the performance thereof, Nash, on July 9, 1962, without any notice to Kolb, sold the listed property to Darlington Veneer Company, Inc., for $62,000.00, and has refused to pay Kolb the commission to which he is entitled under the contract.
It is stipulated by the parties that the first defense of the answer 'in effect constitutes a general denial.' We accept this characterization of the first defense without necessarily subscribing to its accuracy.
The second defense, as already indicated, is by way of confession and avoidance. The material facts alleged in the complaint are admitted, but liability is denied upon the allegation that the written contract was rescinded by the parties, in consideration of which Nash agreed to, and did, pay 'for the cruising of the timber on said land.'
Of ten exceptions taken by appellant, only the first, third, fourth and tenth have been argued in the brief. Those not argued are deemed abandoned.
The first and fourth exceptions are argued together to the sole point that there was insufficient evidence to prove the execution of the contract sued upon. The contract was first offered in evidence during the examination of Mrs. Kolb, after she had identified the document as 'a contract that Mr. Nash gave (her) husband.' At that time, counsel objected, as follows: 'If Your Honor pleases, we object to the document going in evidence, in that it has not been proven to be anything having any bearing whatever in this case.' Thereupon, the court suggested that the witness be asked 'a little more about it.' After the witness had testified that the document had been found in decedent's office files, that it had come into her hands as an asset of his estate, that she recognized the decedent's signature on the document, and that it bore the same date as that alleged in the complaint, the contract was received in evidence without further objection or notice that counsel insisted upon the original objection despite the intervening testimony.
The point now argued is that the contract was admitted in evidence without due proof that it was executed by the defendant. As has been seen, the objection made at the trial went to the relevancy of the document, rather than to its authenticity. The two are not equivalent terms, and the objection for failure to prove due execution, not having been timely raised, was waived. The contract having been properly admitted into evidence, there was no error in overruling the ground of defendant's motions for nonsuit and directed verdict which was based upon the claimed failure of proof of execution of the contract.
The next point argued by appellant is that the Court erred in not submitting to the jury the question of whether plaintiff had substantially complied with his obligation under the contract by 'advertising or otherwise using reasonable efforts to effect a sale of the property.' We find no merit in this contention. Without going into details, the only reasonable inference from the evidence is that Kolb undertook in good faith and with due diligence to find a purchaser for this property at a price satisfactory to Nash. He wrote more than one hundred letters to individuals and firms engaged in the lumber industry or related businesses, and engaged in personal conferences and discussions. Inferentially, other forms of...
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Young v. Warr
...the brief of the appellant and this court considers such to be abandoned. Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15; and Kolb v. Nash, 245 S.C. 25, 138 S.E.2d 417. The appellant urges that the trial court erred in refusing his motions for judgment Non obstante veredicto or for a new trial......
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Broadmoor Apartments of Charleston v. Horwitz
...the court correctly denied the directed verdict motion. The remaining exceptions are affirmed pursuant to Rule 23: Kolb v. Nash, 245 S.C. 25, 138 S.E.2d 417 (1964) (Schlopy's exceptions 8, 13, 17 through 20 and 28); Jones v. Hamm, 253 S.C. 283, 170 S.E.2d 206 (1969) (Schlopy's exceptions 1 ......
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...this question is argued in the brief it is not supported by an exception and raises no issue for determination by us. Kolb v. Nash, 245 S.C. 25, 138 S.E.2d 417. We have stated many times that we cannot consider a question which is not properly raised by an appropriate exception. Priester v.......