Pollock v. Pegues

• Decision Date: 30 June 1905
• Citation: 51 S.E. 514,72 S.C. 47
• Parties: POLLOCK et al. v. PEGUES.
• Court: South Carolina Supreme Court

51 S.E. 514

72 S.C. 47

POLLOCK et al. v. PEGUES.

Supreme Court of South Carolina

June 30, 1905

Appeal from Common Pleas Circuit Court of Chesterfield County Aldrich, Judge.

Action by Carrie E. Pollock and others against James W. Pegues. From the decree, defendant appeals. Affirmed.

The cause was referred to R. T. Caston, who made the following report:

"It appears that the plaintiff W. P. Pollock, acting as agent and attorney in fact for the plaintiff Carrie E Pollock, who is his sister, and by whom he was given such authority, had in his charge 400 acres of land, fully described in complaint, which was owned by her. In the early part of year 1902 he made for her a contract and agreement with the defendant, James W. Pegues, the terms of which were that Pegues was to rent the land at a stipulated rent, and to purchase thirty-five acres of it at $8 per acre the thirty-five acres being described in the testimony by boundaries. Under such agreement Pegues went into possession of entire tract, under contract to purchase the thirty-five acres, and to pay rent upon remainder--the uplands at a stipulated amount, and the low grounds at one-fourth the crops raised. According to the testimony of Mr. Pollock, the rent for the uplands was agreed upon as $150 per annum; and according to the testimony of Mr. Pegues, as two bales of cotton, each weighing 500 pounds. The defendant was given his own time in which to pay for the thirty-five acres, and made only one payment of $20 on the 14th day of February, 1902 for which he was given receipt in evidence, marked 'Exhibit D.' At the close of the year 1902 a settlement of rent was made, leaving the defendant indebted upon this account in sum of $12. This, the defendant claims was paid subsequently by him, by hauling plaintiff's share of the lowland crop to Cheraw. Plaintiff denies this, although admitting that same crop was so hauled; but he did not agree to pay for hauling, nor was hauling worth so much. For year 1903, defendant paid $100 rent, which, according to defendant's contention, was full amount due, but which, according to the testimony of plaintiff, left $50 still due. From the testimony of all the witnesses in the case, it appears to me that $150 was a reasonable rent for the place, exclusive of the thirty-five acres and the low grounds. The determination of the actual terms of renting is not as important, however, under the view taken by me.

Near the close of the year 1903 the plaintiff W. P. Pollock received an offer of about $8 per acre for the entire tract, which he testifies had been on the market for some time, and which he had up to this time failed to get taken at a fair price. As the would- be purchaser refuses to trade without getting the thirty-five acres bargained to James W. Pegues, Mr. Pollock on more than one occasion saw Mr. Pegues; and endeavored to get him to release his claim thereon, which Mr. Pegues was unwilling to do. Thereafter, on the first Monday in January, 1904, they met at Chesterfield, and W. P. Pollock made James W. Pegues several offers to induce him to release; offering him compensation for such damages as he might sustain thereby. Mr. Pollock testifies that Mr. Pegues did so agree, and that, acting upon such agreement, he came to Cheraw that evening, and stated to Mr. M. H. Stacy that release had been made, and that there and then Mr. Stacy bought the entire tract, paid the purchase money, and took title, relying upon the release of Mr. Pegues. Mr. M. H. Stacy soon thereafter conveyed to L. E. Stacy, the plaintiff, for whom he was acting in making original purchase. Mr. Pegues positively denies making such agreement. It is difficult to reconcile the testimony of these two witnesses, both of whom, I am satisfied, are honest in their statements. It becomes necessary, therefore, to take the statements of both of them, and compare them with the surrounding circumstances. Mr. Pollock testifies that he proposed to Mr. Pegues to go ahead that evening and sell to Stacy the entire place. 'You [J. W. Pegues] come down and see me, and if you and I cannot agree on what, if anything, is right for me to pay you, then you appoint a man, I will appoint one, and these two appoint a third, and whatever any two of these say, I will pay you.' *** 'He said he would do it.' Mr. Pegues says that such a mode of settlement was proposed of the valuation of the house on the thirty-five acres, not included in first trade, but which Mr. Pollock had agreed to sell him at a reasonable price. He says he did consent to such settlement of the valuation of house, but not to a release of his claim upon the thirty-five acres of land. He also says: 'I told him I would not do it, and he said he did not think I was treating him right. *** He then told me that he would sell the land anyway, and I could sue him. *** He asked

me then what I would do if he did it. I told him I would have nothing more to say about it myself. I meant I would get some one to look after it for me.' There is other testimony upon this subject. The next morning Mr. Pegues comes to Mr. Pollock's office and asked him what he had done about the land, and was told it was sold, and deed delivered. He then says, 'I then said nothing for some time, and then told him, of course, I had no more to say.' He did, however, in a conversation, offer to take $1,000 in settlement. It appears that Mr. Pollock was determined to close this matter with Mr. Pegues at conversation on Monday, as the purchaser was to meet him in Cheraw Monday evening, and the sale depended upon his acting promptly. Mr. Pegues was told of this. Mr. Pollock certainly understood Mr. Pegues to consent to release, or else he acted with almost insane recklessness in selling to Stacy Monday evening. Stacy was so informed, and acted upon such information. Was Pollock justified in his understanding? Mr. Pegues says the arbitration which was agreed to related to the value of the house. Mr. Pollock says this was not mentioned. Certainly the object in view was the release, not the valuation, of the house. There was no occasion for Mr. Pollock to submit the valuation of the house to arbitration, as it was for Mr. Pegues to buy or refuse to buy at price offered by Mr. Pollock, who had the authority to sell. It is not customary for contemplated buyers and sellers to leave the valuation of the property in view to arbitration. Mr. Pegues testified that, when Mr. Pollock told him he was going to sell anyway, he replied, 'I told him I would have nothing more to say about it myself,' and further states that he meant that he would get some one else to look after it for him, but he did not so tell Mr. Pollock. At best, Mr. Pegues did not, as a prudent man, make his refusal to release clear and explicit. I therefore find that Mr. Pegues left Mr. Pollock under the impression that he had consented to release, and that, under the circumstances, Mr. Pollock had a right to so understand him. It was the fault of Mr. Pegues in not making his refusal clear and explicit, and he is therefore responsible for the consequences which followed. This, however, would not estop Mr. Pegues from standing upon his contract to purchase, had the rights of others not intervened. Mr. Stacy, the plaintiff, was thereby induced to part with his money and alter his position, as he would not otherwise have done. 'It is a well-established principle that when the true owner of property holds out another or allows him to appear as the owner of, or as having full power of disposition over, the property, and innocent parties are thus lead into dealing with such apparent owner, they will be protected.' Big. on Estoppel, 434; Dunlap v. Gooding & Elliott, 22 S.C. 550, and other South Carolina cases; and also volume 11 of En. of Law (2d Ed.) pp. 422, 429. I therefore find that Mr. Pegues is now estopped from denying the title of the plaintiff L. E. Stacy to the thirty-five acres of land.

The value of the house upon the land, in view of my other findings, becomes of little importance. I will state, however, that from its location and condition, as testified to, it appears to be worth $100.

There is no doubt the thirty-five acres in controversy is now worth more than when it was bargained to Mr. Pegues, both from improvements made, and the rapid advance in real estate which this section has recently experienced. It also appears that it is worth more per acre, naturally, than the remainder of tract. The witnesses value it at from $10 to $30 per acre. Most of the witnesses place its value at $30, and, including that of the house thereon, I find this to be its present value.

As all matters arising in the pleadings are before me, the damages sustained by Mr. Pegues by reason of his release of his contract to purchase should be determined and adjusted in this cause. He is certainly damaged to the amount of the present value of the thirty-five acres (exclusive of the house, of course), less the balance of purchase money he was to pay, with interest thereon, and such rents as he may still owe, up to January, 1904. The rent for current year does not come into issue, as this matter can be adjusted between the parties at the proper time. Without going into an exact calculation of such damages, I assess same at the sum of $250, less the costs of this case, which should be paid by the defendant. Upon the payment of such sum by the plaintiff Carrie E. Pollock, or W. P. Pollock, her agent, less the costs of this case, to the defendant, James W. Pegues, the title of the plaintiff L. E. Stacy in and to the said thirty-five acres contracted to be sold to the said James W. Pegues should be confirmed, and the agreement heretofore made with James W. Pegues to sell said thirty-five acres to him be abrogated."

The plaintiffs excepted to...