Martin v. Jennings

• Decision Date: 19 April 1898
• Citation: 29 S.E. 807,52 S.C. 371
• Parties: MARTIN . v. JENNINGS, Olerk of Court, et al.
• Court: South Carolina Supreme Court

29 S.E. 807

52 S.C. 371

MARTIN .

v.JENNINGS, Olerk of Court, et al.

Supreme Court of South Carolina.

April 19, 1898.

Limitation op Actions — Heiks — Liabilities-Husband and Wife—Gifts—Witnesses—Competency—Trial— Evidence—Appeal — Review —Harmless Error.

1. A letter written by defendant to plaintiff after an action is begun, wherein defendant acknowledges the indebtedness sued on, is not admissible to avoid the statute of limitations.

2. The obligation of an heir to pay the debt of an ancestor on account of real estate, does not rest on contract with the heir, but on his possession of property of the ancestor.

3. Where evidence was properly excluded for the purpose for which it was offered, whether it could properly have been admitted for a reason first suggested on appeal will not be considered.

4. Under Code, § 400, providing that no party to an action shall be examined, in regard to any transaction or communication between him and a person deceased at the time of the examination, as a witness against a party prosecuting or defending as a representative of the deceased, one who is sued as an heir may testify to the contents of a letter received by her ancestor from plaintiff, and to conversations between her and the ancestor.

5. Testimony offered without objection is competent.

6. The ruling of the trial court as to the relevancy of evidence will not be reversed unless the party complaining has been injured by an abuse of discretion.

7. Where an objection to a question is sustained, but the admitted answers of the witness to other questions contain, in substance, an answer to that question, the party for whom the witness testified is not prejudiced by the ruling.

8. Where an administrator and an heir are sued on a note given by decedent, and the administrator denies execution of the note, and the heir admits it, it is harmless error to charge that the heir "denies that it was ever made."

9. Every perfected gift is an executed contract, and cannot be converted into a debt against the donee.

10. Where a husband appropriates for a number of years rents belonging to his wife, a gift cannot be conclusively presumed from the acquiescence of the wife in such appropriation; it being a question for the jury.

11. In refusing a motion for a new trial in a case at law, the judgment of the circuit court is final, as to questions of fact; and. where there is some evidence to sustain a verdict, a refusal to grant a new trial is not error of law.

Appeal from common pleas circuit court of Fairfield county; O. W. Buchanan, Judge.

Action by Stark P. Martin against R. H. Jennings, clerk of court, as administrator of the estate of Mattie Gaither, deceased, and Sallie G. Martin, as heir at law. From a judgment for defendants, plaintiff appeals. Affirmed.

J. E. McDonald, for appellant.

A. S. & W. D. Douglass, for respondents.

JONES, J. This action was commenced January 15, 1896, against the administrator and sole heir at law of Mattie Gaither, deceased, to recover on two notes (one dated November 21, 1888, payable one day after date, for $450, with interest, and the other dated January 9, 1893, payable one day after date, for $235.39, with interest at 8 per cent, per annum), and also on an open account, for cash, goods, supplies, and merchandise alleged to have been furnished by plaintiff to said Mattie Gaither, at her request, in her lifetime, between January 1, 1893, and December 31, 1893, amounting to $113.35, and also for compensation for plaintiff's time and attention in the supervision of the farms of said Mattie Gaither, amounting to $62.50, for all of which, less a credit of $52.29 on said open accounts, judgment was demanded. Mattie Gaither died May 20, 1893; leaving as her sole heir at law the defendant Sallie G. Martin, who is the wife of plaintiff, who was in possession of the real estate and the small amount of personalty of which Mattie Gaither died seised and possessed, when the action was commenced. The defendant Jennings qualified as administrator of Mattie Gaither September 27, 1895. As to the $450 note above mentioned, the complaint alleged "that after the death of the said Mattie Gaither the defendant Sallie G. Martin, the heir at law aforesaid, in writing promised to pay to the plaintiff the said note and sum of money aforesaid." The administrator answered, denying the allegations as to the three causes of action, and pleading no assets coming into his hands as administrator, and the statute of limitations as to the $450 note. The defendant Sallie G. Martin answered, pleading payment as to the $450 note, denying that she had promised, in writing, to pay said note, and pleading the statute of limitations to the action thereon. As to the second note, she pleaded payment by proceeds of rent paid to plaintiff by tenants of the defendant's plantation, her separate estate, and also by proceeds of rents and profits of the one-horse farm on the plantation of Mattie Gaither, deceased, for the years 1893, 1894, and 1895. As to the open account sued on, she pleaded general denial, and payment. As to all the causes of action, she pleaded as counterclaims the reception of rents by plaintiff of her separate estate, and from lands of Mattie Gaither descended to her, for the years 1893, 1894, and 1895. The jury rendered a verdict In favor of the defendants. A motion for a new trial was made and refused, and now plaintiff appeals; alleging error In the rulings of the circuit judge as to the exclusion and as to the admission of certain testimony, In his charge and refusal to charge certain matters to the jury, and in refusing the motion for a new trial.

1. The first exception alleges error in refusing to allow plaintiff to introduce in evidence a letter from the defendant Sallie G Martin to the plaintiff, Inasmuch as said letter (1) tended to contradict the answer of the said defendant, wherein she alleged that plaintiff had received and appropriated the rents and profits of the lands occupied by him; and (2) it was relevant to show that defendant had recognized the validity of the notes held by plaintiff against Mattie Gaither, and had therein promised to pay the same. The record shows. that plaintiff's counsel offered this letter "for the purpose of showing that Mrs. S. G. Martin recognized the debts." It was admitted that the letter was written after the commencement of the action. The circuit judge excluded the letter for the reason that, having been written after suit brought, it could not be used to make good the cause of action stated in the complaint. The circuit Judge did not err in this ruling. The complaint was framed to meet a plea of the statute of limitations to the note dated November 1, 1888, payable one day thereafter; and so it alleged a promise in writing by the defendant to pay this note, made after the death of Mattie Gaither, May 26, 1893. Under this view, the new promise in writing was the cause of action, and must necessarily have existed before the commencement of the action. Moon v. Johnson, 14 S. C. 436; Milwee v. Jay, 47 S. C. 430, 25 S. E. 298. It turned out, however, in the further progress of the case, that the administrator of Mattie Gaither did not qualify until September 27, 1895. The action was not barred on this note at the death of Mattie Gaither, and the suit vfras commenced before the expiration of 12 months from the qualification of the administrator; hence the matter of the statute of limitations was entirely eliminated from the case. Therefore, even if the circuit judge had erred In excluding the letter for the purpose for which it was offered, the ruling did not prejudice plaintiff. But, further, this, so far as defendant Sallie G. Martin is concerned, Is an action against the heir for the debt of the ancestor, on account of real estate described. In such case there is no necessity to allege or prove any special promise or averment on the part of the heir to pay the debt of the ancestor. The obligation of the heir to pay such debt to the extent of the property of the ancestor in the heir's possession, does not rest in any contract of the heir, but upon the heir's possession of property liable for the payrnent of the debt. Lowry v. Jackson, 27 S. C. 323, 3 S. E. 473. Appellant now urges upon this court that the letter ought not to have been excluded, because It was relevant, as tending to contradict the answer of defendant alleging that plaintiff received and appropriated certain rents, etc. But this ground was not presented before, nor considered by, the circuit court. Having shown that the letter was not Improperly excluded when offered for a specific purpose, this court will not consider whether it should have been admitted for another purpose, suggested forthe first time in this court, for the same reason that a party objecting to the admission of testimony on a particular ground cannot be permitted in this court to allege error in the admission of such testimony on a different ground. General Electric Co. v. Blacks-burg, 46 S. C. 77, 24 S. E. 43.

2. It is excepted that there was error in allowing Sallie G. Martin to testify as to the contents of an alleged letter from plaintiff to Mattie Gaither, and to conversations between defendant and Mattie Gaither, deceased, in regard to a receipt alleged to have been given for the note for $450, when said testimony was incompetent, under section 400 of the Code of Civil Procedure. Judge Benet, acting associate justice, speaking for the court in Norris v. Clinkscales, 47 S. C. 492, 25 S. E. 797, has made a clear analysis of this intricate section of the Code, to which we refer now, without repeating the same. Assuming now that Sallie G. Martin was allowed to testify as to a conversation between her and Mattie Gaither, deceased, while it is true she (Sallie G. Martin, the witness) was a party to the case, and had an interest to be affected by the event of the trial, and while it is true that such conversation, if had, was with a person who...