Ould v. Spartanburg Realty Co.

• Citation: 77 S.E. 866,94 S.C. 184
• Parties: OULD v. SPARTANBURG REALTY CO.
• Decision Date: 27 March 1913
• Court: United States State Supreme Court of South Carolina

77 S.E. 866

94 S.C. 184

OULD v. SPARTANBURG REALTY CO.

Supreme Court of South Carolina

March 27, 1913

Appeal from Common Pleas Circuit Court of Spartanburg County; Geo W. Gage, Judge.

"To be officially reported."

Action by G. W. Ould against the Spartanburg Realty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lyles & Lyles, of Columbia, for appellant. Stanyarne Wilson, of Spartanburg, for respondent.

WATTS J.

This action was tried before his honor, Judge Gage, and a jury and resulted in a verdict for the plaintiff in the sum of $967.68, and, upon entry of judgment, defendant appealed. The plaintiff, by his complaint, alleged the following facts which were sustained by the evidence: That the defendant, a real estate corporation, made contracts with the plaintiff by which it agreed to deliver to him warranty deeds to four lots of land, in the city of Spartanburg, for the consideration of $2,500, to be paid in installments ($100.80 cash and $50.40 monthly), and guaranteed "that it would make the following improvements within a reasonable time": "(1) That the street or streets on which said lots face will be graded and curbed with granolithic sidewalks, and have trees planted thereon. (2) That water mains and sewers be laid accessible to said lots, all without cost to purchaser." That the "reasonable time," as mutually understood by them, expired before plaintiff ceased making payments. That he made payments amounting in all to $756, and only stopped making them thereafter because of the company's violation of the contract in failing and refusing to perform its guaranty, which was one of the inducements and consideration for his entering into them. That thereafter defendant conveyed the lots to another party and breached the contracts and rendered them impossible of fulfillment, and that in consequence he was damaged to the extent of the payments so made by him, with interest, for which damages he asks judgment.

The action was one for damages for breach of contract; the amount of damages, as alleged, being the payments made by plaintiff, and interest, and nothing else. At close of plaintiff's evidence, a motion for a nonsuit was made on two grounds. The first was that the plaintiff's covenants and defendant's covenants in the contract are independent of each other and that a failure of defendants to comply with its covenants would not release plaintiff from his obligation to make his monthly payments. That his only remedy would be to go into a court of equity and ask for specific performance or sue for breach of covenant. Plaintiff's attorney assented to this proposition, both in the court below and here. The second ground was that the following clause of the contract is a stipulation for liquidated damages: "It is agreed that, if the purchaser shall be in default in making any of the said payments for a period of 60 days, this agreement shall be null and void, and the money paid thereunder shall be retained by the party of the first part as liquidated damages, without any liability to account for the same." Plaintiff's attorney controverted this proposition and contended that there were no liquidated damages in it. His honor overruled the motion for a nonsuit, holding that a contract was one of penalty and not of liquidated damages. Defendant appeals and alleges six assignments of error on the part of his honor.

The first ground of appeal questions the rulings of his honor in admitting testimony, over objection as to what was meant by "reasonable time" in the contract, as the evidence tends to vary and modify a written instrument. We do not think his honor, the presiding judge, was in error in this. What...