McCarter v. Armstrong

• Decision Date: 03 March 1890
• Citation: 10 S.E. 953,32 S.C. 203
• Parties: McCARTER et al. v. ARMSTRONG.
• Court: South Carolina Supreme Court

10 S.E. 953

32 S.C. 203

McCARTER et al. v. ARMSTRONG.

Supreme Court of South Carolina

March 3, 1890

Appeal from common pleas circuit court of York county; T. B. FRASER Judge.

Hart & Hart, for appellant.

C. E Spencer, for respondents.

SIMPSON C.J.

Some time in 1886 the plaintiffs, respondents, and the defendant appellant, entered into a certain written agreement, a copy of which is hereto appended, in which it was stipulated that a certain mill down across Allison's creek, in the county of York, at a point where the defendant had a mill, should be taken down by the defendant, and the channel of the creek above said dam dug out, ditched, and opened up to the Scruggs line, so as to allow all running water to flow freely, the ditch to be of sufficient size to drain the lands of the respondents, which, it was stated, were greatly injured by the pond, this said work to be completed by the 1st day of July then ensuing, in 1886, unless prevented by rocks requiring blasting, and then in a reasonable time, and when completed to be kept open and unobstructed forever, etc., which the defendant bound himself faithfully to perform in the penal sum of $600, the plaintiffs agreeing to pay the defendant $600 at the execution of the agreement, which payment was acknowledged by the defendant, and also stipulating for some other privileges to the defendant, all of which appears in the agreement appended. The work not having been done, as it is alleged, although frequently requested by the plaintiffs, the action below was commenced in September, 1887, in which the plaintiffs prayed judgment: "(1) That the defendant be forthwith required to cut the said ditch in manner and form as he had undertaken to do, that is to say, so that it would allow all ordinary water to flow freely through it from off the plaintiffs' lands above, and to be of sufficient size for that purpose, and, further, that he be required to keep the same open and unobstructed forever; and, failing in this, that the plaintiffs be allowed to do the said work at the defendant's expense. (2) For the sum of nine hundred dollars, special damages suffered by the plaintiff's from the defendants' failure of performance up to the present time, as well as for damages to follow hereafter up to the time of performance, and for the costs of this action." The defendant answered, denying certain allegations of the complaint, but averring that he had performed the work which the agreement required of him according to the stipulation therein, and further averring that the failure of the ditch to drain plaintiff's lands, was due to other causes than the imperfect construction of the ditch. Before the case came up for trial the defendant gave notice, under rule 29 of the circuit court, that an order would be applied for submitting certain issues to a jury; and at the November term, 1888, his honor, Judge KERSHAW, upon hearing the motion, made an order appointing a referee to frame jury issues, and continued the case. These issues were framed, and afterwards reported to the court. They will be found in the case. When the case afterwards came up for trial, his honor, Judge T. B. FRASER, presiding, "announced (against the objection of the plaintiffs, who contended that the case was one in equity, for specific performance) that he would remit the whole case to a jury, and let them find a general verdict; that he was inclined to the opinion that it was not a case of equity jurisdiction, for specific performance, but, if he should conclude later that it was such, he would hear the case on calendar 2, when reached on that calendar 2 the plaintiffs moved for a new trial in the event that his honor still thought the case was a case at law. His honor then announced that he would hear counsel on the prayer for specific performance, after which he filed a decree giving judgment for specific performance, and granting such orders as were necessary to enforce said judgment.

The defendant has appealed upon several exceptions, all of which will be found in the case; but, from the view which we have taken of the appeal, we think that exception 5 is the only one that raises any question proper for our consideration. That exception alleges error to his honor "in reversing his first conclusion at the opening of the trial, that the case presented by the pleadings was not one for specific performance, but an action sounding in...