New v. Collins

• Decision Date: 05 November 1923
• Docket Number: 11325.
• Citation: 119 S.E. 835,126 S.C. 294
• Parties: NEW v. COLLINS.
• Court: South Carolina Supreme Court

119 S.E. 835

126 S.C. 294

NEW v. COLLINS.

No. 11325.

Supreme Court of South Carolina

November 5, 1923

Appeal from Common Pleas Circuit Court of Greenville County; T. S Sease, Judge.

Action by A. G. New against D. A. Collins.Judgment for plaintiff and defendant appeals.Affirmed.

The decree of Circuit Judge T. S. Sease follows:

"This case comes before me upon exceptions to the report of the master.The plaintiff by his complaint is seeking the specific performance of a contract in writing, involving the exchange of two pieces of property.The written contract signed by the plaintiff and the defendant and witnessed by two witnesses is admitted.The defendant Collins, admits executing the contract, and seeks to avoid performing it, upon the ground that the plaintiff and his agents made certain false and fraudulent representations to him relative to the mortgage of $6,400, which the defendant by the terms of the written contract agreed to assume.

I cannot agree with the findings of the master.Mr. J. R Willis and Mr. H. W. Rozier testified positively that no representations were made to the defendant that the mortgage he was assuming was due and payable in annual installments of $1,000 each, the first installment to be due on January 1, 1923.The defendant, Collins, testified positively that such representations were made to him.The master finds that 'there were no actual and direct verbal misrepresentations made by the plaintiff, New, unto the defendant, Collins, nor were any such verbal misstatements or misrepresentations made by Willis and Rozier unto the defendant, Collins.'There is no escape from this conclusion, and there is not sufficient testimony to support the further finding of the master that Collins 'believed at the time he executed the contract that the $6,400 mortgage was due and payable in five annual installments, and the plaintiff, New, and his agents, Willis and Rozier, knew that the defendant, Collins, was laboring under a misapprehension as to the maturity of the paper,' etc.In fact, I am convinced upon careful consideration of all the testimony that the defendant Collins is merely using this circumstance to avoid performance of his contract.When a man places his signature to a written contract it is a serious matter, and the law presumes that he knows what he is doing.

In this case the contract was prepared in the presence of the defendant, Collins, and in the absence of the plaintiff, New, and, as testified by Mr. Rozier, it was for the purpose of making a definite offer to the plaintiff, New, for his acceptance or rejection.The plaintiff, New, accepted the contract, which was drawn up in the presence of Collins, and it was Collins' business to exercise, at least, some dilignece in ascertaining the true facts.In the case of McChesney v. Smith,105 S.C. 171, ^[1]the court says: 'Specific performance of agreements is not a matter of absolute right, but rests in the sound discretion of the court.The exercise of that discretion will, of course, depend upon the facts and circumstances of each case.A court of equity will not decree specific performance, unless the contract is fair, just and equitable, nor if it fails to express the true agreement of the parties, by reason of fraud, accident, or mistake.'

While, it is true that specific performance rests in the sound discretion of the court, the court must be governed by the rules of law and equity, and will enforce a contract which is fair and was entered into openly and above-board, as was done in this case.The recent case of Mobley v. Quattlebaum,101 S.C. 221, 85 S.E. 585, was a much stronger case in favor of the defendant than the one here.In that case, the Supreme Court says: 'The defendant could have, and by proper care and inquiry, got the truth upon investigating as to the paving of streets and removal of shops.Upon investigating what ordinances had been passed by the City Councilhe could have found out about the paving of the streets.'And further: 'If he does not avail himself of the knowledge or means of knowledge open to himself or his agents, he cannot be heard to say that he was deceived by the vendor's misrepresentations.'

This case quotes with approval the case of Anderson v. Rainey,100 N.C. 338, 5 S.E. 189, where it is held: 'If, in a contract for the purchase of land, a party fails to avail himself of those sources of information readily within his reach, and chooses to rely upon representations, which, though not true, were not made with any false and fraudulent intent, the maxim of caveat emptor applies, as it does to personal property, and courts will not aid the purchaser.'

The case of Lumber Co. v. Matheson,69 S.C. 87, 48 S.E 111, lays down the following principles: 'The parties occupied no fiduciary relations to each other; they were dealing at arms' length, and were fully competent to contract.They had every opportunity of knowing the contents of the option signed by the defendant, and of understanding what it should have contained and did contain.There is no evidence of any concealment on the part of Mitchell, the agent of the plaintiff.The burden of proof to show mistake is upon the appellant, and we think that he has not shown, by the preponderance of evidence, such a state of facts as would entitle him to the equity that he seeks to invoke...