Neal v. Clark

• Decision Date: 20 March 1942
• Docket Number: 15391.
• Parties: NEAL v. CLARK.
• Court: South Carolina Supreme Court

19 S.E.2d 473

199 S.C. 316

NEAL v. CLARK.

No. 15391.

Supreme Court of South Carolina

March 20, 1942

Perrin & Tinsley, Osborne, Butler & Moore, and Jesse W Boyd, all of Spartanburg, for appellant.

Johnson & Johnson and J. C. Mooneyham, all of Spartanburg, for respondent.

WM. H GRIMBALL, Acting Associate Judge.

This is the second appeal in this case. The first is reported in 196 S.C. page 139, 12 S.E.2d 921, 924; and may be referred to for a synopsis of the pleadings and the text of the paper signed by Mrs. Clark, which is the center of this controversy.

In order to discuss and consider this case intelligently it is well to determine its real nature.

Appellant in his demurrer to the complaint states: "Aside from the note the only fact alleged for a recovery against the defendant is an alleged family settlement and there is no consideration alleged therefor, the plaintiff was not a party to same, and it is a nudum pactum."

His Honor, Judge Gaston, in his decree of July 20, 1938 overruled this demurrer. He finds in this decree that "The complaint alleges a parol gift to plaintiff by her mother." He further finds that under the allegations of the complaint "The plaintiff is the equitable owner of a fourth part of the donation or gift and the other three children have received their share etc." There was no appeal from this order.

This Court, on the previous appeal, made the following statement "The foundation of this action is based upon the allegations of a family settlement, in which defendant participated, by which Mrs. Clark gave to her four children in equal parts the notes owed to her by them; that in this settlement there were listed notes of defendant amounting to the sum of $5,609.19. These were given to each of the children in equal parts. The plaintiff's share it is alleged was to be paid to her by appellant. He pleads that he is not liable because he had paid these notes to his mother and offers evidence to support that plea."

The basis of the alleged settlement therefore was the gift of the mother to her four children of their respective debts to her.

The alleged family settlement took place on February 10th, 1932. To prove this, respondent offered in evidence a paper signed by the mother on April 28th, 1932, in which she sets forth the amounts due her by the four children, and gives the same to them, and directs that they be equally divided among them. See former appeal.

Respondent offered testimony to sustain the allegations of the complaint. There was testimony as to the gift by the mother of the debts and a family settlement and division of the same; that respondent is a deaf mute, and that appellant attended to her affairs for her and held her note at the settlement.

Appellant testified in denial of the claims of respondent, and insisted that payment had been made of various amounts on his debt to his mother.

The issues were submitted to the jury, and verdict rendered for respondent for the amount sued on.

On this appeal there are seventy-three exceptions, consuming some fifteen printed pages of the record. With due deference to the painstaking and able attorneys for appellant we are reminded of the old fashioned blunderbuss which the hunter, closing his eyes, used to fire in the hopes that he would hit something somewhere.

These attorneys, however, with commendable consideration for the effort of the members of this Court to keep up with their work, have grouped these exceptions under six heads, and we shall deal with the issues accordingly.

As to the statement of Mrs. Clark.

This statement is dated April 28, 1932; a few months after the alleged family settlement of February 10, 1932, and long before the commencement of any action.

At the previous trial, appellant objected to this statement on the ground that "It does not appear to be identified with Dr. Clark, the defendant, in any way. It is merely a statement." The paper was admitted for the purpose of showing what disposition Mrs. Clark made of this part of her estate.

The learned Circuit Judge in his order held that the statement was against her interest, as she was purporting to give away the sum of $10,417.18.

In argument on the appeal from that first trial appellant's attorneys said that it was objectionable as hearsay. This Court stated: "It is certain that Judge Gaston has never passed upon the issue that the statement was hearsay and inadmissible for that reason. It is not proper for us to pass upon that issue. We think the statement was admissible, as is shown by the order and by the authorities cited by the Circuit Judge and by others cited by the respondent."

Upon the instant trial the paper was again offered and was objected to as hearsay. Judge Sease admitted the paper in view of the ruling of this Court.

The question now presented by appellant is whether or not the paper should have been rejected as evidence by the trial Judge under the hearsay rule.

Ordinarily a mere statement of a creditor not on the witness stand as to the amount due on a note held by him might well be regarded as hearsay on the ground that no opportunity was given for cross-examination. However in the case at bar the mother is dead, and her written statement as to the amount due might well be regarded as a declaration against interest, made shortly after the transaction, and before litigation. The declaration of amounts due was of no benefit to the mother. She was giving away the notes. The paper was against her proprietary interests. The more there was due the more she was giving away, which was to that extent against her interest. This would create an exception to the hearsay rule. See 22 C.J., pages 232, 233.

However, assuming for the sake of argument that the writing in question was hearsay so far as the amounts stated therein are concerned, the paper was competent evidence to go to the jury on the question of the validity of the gift from the mother to the children.

A paper may be incompetent as to certain things and competent as to others. Freeman v. Bailey, 50 S.C. 241, at page 256, 27 S.E. 686. In Smith v. Williams, 141 S.C. 265, at pages 278, 279, 139 S.E. 625, 629, 54 A.L.R 964, the Court admitted an otherwise incompetent paper for the purpose of evidence as to whether or not a family agreement had been entered into. And the Court said that the paper, while not enforceable in a judicial proceeding, "but, in moral right, the request, if recognized as expressing their father's wishes, was just as much a charge upon them, which filial duty should cause them to comply with, as if the paper containing the request had fully met the formalities of execution...