Mullaly v. Smyth

Decision Date08 October 1913
Citation79 S.E. 634,96 S.C. 14
PartiesMULLALY v. SMYTH et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Anderson County; S.W. G Shipp, Judge.

Suit by J. B. Adger Mullaly against Ellison A. Smyth and another, as executors, etc. Judgment for defendants, and plaintiff appeals. Affirmed.

A. H Dagnall, of Anderson, for appellant. T. F. Watkins, of Anderson, for respondents.


This was an action for specific performance of a contract. The plaintiff alleged in his complaint that his aunt had promised to will and devise all of her property to him, provided he lived with her and managed her property during her lifetime and that she endeavored to carry out her agreement by making a codicil, but that the codicil was not legally executed, and she died without carrying out her agreement, although plaintiff performed his part of the agreement. Defendants, by answer, denied the material allegations of the complaint, and interposed as a defense the statute of frauds, and that if there was any such contract, as alleged, it was obtained by fraud and undue influence. After issue joined, the cause came on for a hearing before his honor, Judge Prince, and four issues were framed to be submitted to the jury under rule 28 of the circuit court. Upon the issues the jury found in favor of the defendants, and a motion for new trial was made and refused, and his honor, Judge Prince, passed a decree approving and confirming the verdict of the jury, and upon consideration of the whole case, in the light of the findings of fact, dismissed the complaint. After entry of judgment plaintiff appeals, and asks reversal of the same.

Exceptions 1, 2, 4, 5, 6, 7, 8, and 11 complain of error on the part of the circuit judge in his charge to the jury, in that by his charge he required too high a degree of proof on the plaintiff, by requiring the plaintiff to prove his case to the satisfaction of the jury by a clear preponderance of the evidence. An inspection of the judge's charge as a whole clearly shows that the jury were informed that the plaintiff must make out his case, and establish it by the greater weight of the evidence. It is true that at times he told them that it was to be proven by a clear preponderance of the evidence, but his charge as a whole could not have conveyed to the jury any other inference than that the plaintiff should make out his case by the greater weight of the evidence, and his charge sufficiently explained and defined to the jury what he meant by "a clear preponderance" of the evidence to the satisfaction of the jury. This charge was not obnoxious to the cases decided by this court, but is in accordance with the law, as decided in McKeegan v. O'Neill, 22 S.C. 454; McMillan v. McMillan, 77 S.C. 511, 58 S.E. 431; Folk v. Brooks, 91 S.C. 7, 74 S.E. 46; Lawson v Southern Railway Company, 91 S.C. 210, 74 S.E. 473; Sullivan v. Moore, 92 S.C. 305, 75 S.E. 497. These exceptions are overruled.

Exception 3 imputes error on the part of his honor in charging on the facts. We fail, after a careful examination of the judge's charge, to find that he in any manner invaded the province of the jury and charged on the facts as complained of. The judge has a right to charge the jury what the law is applicable to...

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