Murph v. Smoak
| Decision Date | 26 January 1920 |
| Docket Number | 10329. |
| Citation | 101 S.E. 844,113 S.C. 168 |
| Parties | MURPH v. SMOAK. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Calhoun County; I. W Bowman, Judge.
Action by W. W. Murph against A. S. Smoak. From an order granting a reference, the defendant excepts and appeals. Appeal dismissed.
M. M Mann, of St. Matthews, for appellant.
J. C Redmon and J. G. Stabler, both of St. Matthews, for respondent.
This is an action for specific performance, and the appeal is from an order of reference; the defendant contending that he was entitled to a trial by jury.
The complaint alleges that the plaintiff and the defendant entered into an agreement for the sale of the land therein described in February, 1919, on the following terms: The purchase price was $12,500, of which $1,000 was paid when the agreement was made; $6,000 was to be paid on the 1st of December, 1919, at which time the plaintiff agreed to convey the land in fee; the defendant agreed to secure the balance of the purchase money by a mortgage of the premises payable in three annual installments, with interest at 6 per cent that when the cash payment was made the plaintiff gave to the defendant a receipt in writing wherein was set forth the terms of the agreement; that the defendant has failed to perform his part of the contract.
The defendant denied the execution of such a contract, but alleges that on the day mentioned in the complaint he purchased an option on said lands for which he paid the sum of $1,000 upon the condition that, if he concluded to comply with the terms of the agreement, he was to pay the $6,000 on the 1st day of December, and secure the balance, on delivery of the deed by a mortgage, and was to receive credit for the cash payment of $1,000. The defendant further alleged:
"That upon the expiration of the said option defendant notified plaintiff that he would not exercise his claim or right of purchase thereunder; that he surrendered possession of the said premises to the plaintiff; and that he has not since then at any time been, nor is he now, in possession of the said premises."
Upon the call of the case for trial the plaintiff made a motion for an order of reference. The defendant resisted the motion on the ground that he was entitled to a trial by jury. His honor the circuit judge granted the order of reference, and the defendant appealed upon the following exceptions:
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...92 S.C. 384, 75 S.E. 691; Mobley Co. v. McLucas, 99 S.C. 99, 82 S.E. 986; Singleton v. Cuttino, 107 S.C. 465, 92 S.E. 1046; Murph v. Smoak, 113 S.C. 168, 101 S.E. 844; Farley v. Matthews, 168 S.C. 294, 167 S.E. Spencer v. National Union Bank, 192 S.C. 355, 6 S.E.2d 755. An interesting annot......
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Spencer v. National Union Bank of Rock Hill
...the action of the trial Judge is fully sustained by the cases of Singleton v. Cuttino, 107 S.C. 465, 92 S.E. 1046, and Murph v. Smoak, 113 S.C. 168, 101 S.E. 844. appellant relies upon Culler v. Hydrick, 162 S.C. 253, 160 S.E. 731, but it does not appear that this decision lends him any aid......