Shelton v. Skyland Stages, Inc.

• Decision Date: 13 June 1933
• Docket Number: 13650.
• Citation: 169 S.E. 718,170 S.C. 100
• Parties: SHELTON v. SKYLAND STAGES, Inc.
• Court: South Carolina Supreme Court

169 S.E. 718

170 S.C. 100

SHELTON v. SKYLAND STAGES, Inc.

No. 13650.

Supreme Court of South Carolina

June 13, 1933

Appeal from Common Pleas Circuit Court of Greenville County; J Henry Johnson, Judge.

Action by W. M. Shelton against the Skyland Stages, Incorporated. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed and cause remanded in accordance with opinion.

Tobias & Turner, of Columbia, and Joseph R. Bryson, of Greenville for appellant.

Mauldin & Love, of Greenville, for respondent.

BLEASE Chief Justice.

The essential allegations of the complaint in this case were to the following effect:

"On or about the -- day of April, 1930," the plaintiff agreed to sell to J. L. Gilmer, agent for the defendant, and Gilmer, as such agent, agreed to purchase from the plaintiff, "a certain Certificate of Public Convenience and Necessity over the highway leading from Greenville, South Carolina, to Hendersonville, North Carolina, and two Buick busses" at the agreed consideration of $37,400, payable $3,000 in cash, $14,500 upon delivery, and the sum of $17,500 payable in twelve equal consecutive monthly notes of $1,458.33 each, and $2,400 in twelve consecutive monthly payments of $200 each; "that for a purpose well known to the plaintiff and the defendant this last item of Twenty-four Hundred ($2,400.00) Dollars was designated as salary, and made payable in twelve (12) consecutive monthly payments;" the agreement between plaintiff and Gilmer, the agent, was thereafter assigned and transferred by Gilmer to the defendant, and the defendant assumed all the obligations due, and to become due, to the plaintiff; the defendant had paid all of the consideration for such conveyance, except the last item of $2,400, which became due and payable $200 in May, 1930, and $200 each consecutive month thereafter through April, 1931; and no part of the last-mentioned sum of $2,400, either principal or interest, had been paid, although demand for payment had been made, which said sum so due represented a part of the purchase and sale price of the properties sold.

So far as it is necessary to determine the questions raised by the appeal, only certain matters set up in the answer of the defendant need be stated. The defendant denied the indebtedness alleged by the plaintiff, and expressly claimed that the $2,400 item was for salary to be paid to the plaintiff for certain services to be performed by him for the defendant, which services had not been rendered because of the physical incapacity of the plaintiff to perform them. To the answer was attached a copy of the contract between the parties and a copy of an "option agreement," entered into prior to the making of the contract. These instruments are conceded by the parties to be true copies.

The case was tried in the court of common pleas of Greenville county, with his honor, Judge Johnson, presiding. The result was a verdict and judgment in favor of the plaintiff for the full amount of his demand, $2,400 and interest.

In the trial, the defendant took the position that the purchase price of the property sold to it by the plaintiff was definitely fixed by the written contract at the sum of $35,000, all of which had been paid; that the contract as to the purchase price was clear, certain, and unambiguous, and, accordingly, plaintiff could not recover the sum claimed by him as part of the consideration or the purchase price of the property; and that parol evidence to show the consideration to be other than the fixed sum of $35,000 was inadmissible.

On the other hand, the plaintiff contended that there was ambiguity in the contract; that the true consideration for the sale and purchase of the property was $37,400; that the item of $2,400, stated in the contract to be for salary, was, in fact, a part of the purchase price of the property; that the agent with whom he made the contract knew the circumstances and what was the real consideration of the purchase price; that the defendant corporation, for whom Gilmer, the agent, acted was later advised fully of the true consideration and ratified the agent's act; and that parol evidence to show the true consideration, $37,400, was admissible.

For some time the circuit judge was inclined to the view that there was no ambiguity in the contract, and indicated rulings favorable to the position of the defendant. But after a full study and consideration of the matter, he concluded that the contract was ambiguous. He, therefore, allowed the introduction of parol evidence to show the true consideration, as alleged by the plaintiff. He refused a motion for a directed verdict in favor of the defendant. The jury was instructed that, under the language of the contract, there was ambiguity in its terms as to the consideration, and it was left to them to decide what was the real consideration of the purchase price of the property conveyed.

While there are several exceptions by the defendant in its appeal to this court from the judgment adverse to it, only one real issue is before us: Was there error in the holdings of the trial judge to the effect that there was such ambiguity in the contract, regarding the true consideration of the purchase price of the property, as to require the construction of its terms to be submitted to the jury?

To answer the stated question, it will be necessary to refer somewhat extendedly to the contract, which is rather lengthy, and a preceding "option agreement," made a part of the contract.

The option agreement, dated March 19, 1930, was expressly made a part of the contract, later entered into. Therein, the plaintiff acknowledged the receipt of the sum of $3,000, "on account of and as part payment on the purchase of the Red Top Buss Line owned by the undersigned W. M. Shelton, seller, and running from Greenville, S. C., to Hendersonville, N. C., including all rights and franchises in North and South Carolina, and also including two 15-passenger 1927 Model Buick Busses now owned by the said seller."

In the second paragraph, there is contained the statement that "the balance of the purchase price to be $32,000.00, payable $14,500.00 in cash, on or before April 19th, 1930, and the balance of $17,500.00 in twelve equal monthly installments, with provision as to interest."

In the third paragraph, there is a provision that "all of the unpaid portion of the purchase price" is to be secured by a purchase-money mortgage on the property to be conveyed.

After setting forth language looking to the organization by the purchaser of a corporation to take title to the property and franchises conveyed, this clause appears: "It is further agreed that the seller will be given a position by the buyer, or by the corporation organized by him, for a period of twelve months from date of closing this transaction, at a monthly salary of Two Hundred Dollars ($200.00) per month, payable monthly."

In the contract, dated April 11, 1930, after reciting the option agreement before mentioned, and providing that its "terms and conditions" are made a part of the contract, the instrument proceeds to set forth numerous agreements on the part of the parties. We quote, and call especial attention, by way of italics, to certain language depended upon by the respondent to sustain his position that the contract is ambiguous.

In the preamble, the contract is stated to be "In consideration of the premises, and in further consideration of the conditions, terms, stipulations, covenants and payments hereinafter set forth."

In paragraph 1, the plaintiff, as "seller," does "sell, transfer, set-over and deliver" unto the purchaser, Gilmer, the agent, the personal property described, which he represents to be free of any lien or incumbrance whatsoever.

By the terms of paragraph 2, the seller "in consideration of the aforesaid mentioned terms, and other good and valuable consideration hereinafter more fully set forth," sells and delivers certain franchise rights to operate a motorbus line therein described.

In paragraph 3, there is an acknowledgment on the part of the seller that "there has heretofore been paid" to him "as part of the consideration for the transfer of the property hereinabove described" the sum of $3,000. The following sentence contains the statement that "a further consideration" (evidently for the transfer of the property) is the payment coincident with the delivery of the agreement of the sum of $14,500 in cash. Next is a sentence which sets forth that "a further consideration for the sale and transfer of the property hereinabove described" is the delivery to the seller by the purchaser of twelve promissory notes of the purchaser, each in the sum of $1,458.33, payable monthly. The total of...