Shirer v. O. W. S. and Associates, 18960

Decision Date15 September 1969
Docket NumberNo. 18960,18960
CourtSouth Carolina Supreme Court
PartiesJesse D. SHIRER, Respondent, v. O.W.S. & ASSOCIATES, Inc., the Jefferson Standard Life Insurance Company, and Julian A. Ott, Defendants, Of Whom The Jefferson Standard Life Insurance Company is, Appellant.

Roberts, Jennings & Thomas, Columbia, F. Hall Yarborough, Orangeburg, for appellant.

Marshall B. Williams, Bryant & Fanning, Orangeburg, for respondent.

BRAILSFORD, Justice.

This is an appeal by Jefferson Standard Life Insurance Company from a judgment against if for $21,600.00, the amount of a 'liquidated damage deposit,' retained by it upon the cancellation by O.W.S. & Associates, Inc., of a conditional acceptance of a mortgage loan commitment. This closely held corporation was organized for the purpose of constructing and operating a motel at Smithfield, North Carolina, under a Holiday Inns of America, Inc., franchise. The principal incorporators, all residents of Orangeburg County, South Carolina, were Julian A. Ott, president, Jesse D. Shirer and Fisher Walter. The corporation engaged the services of Stockton, White & Company, mortgage brokers of Raleigh North Carolina, to procure permanent financing for the construction and furnishing of the motel. On November 22, 1966, Stockton obtained a commitment for a mortgage loan of.$540,000.00 from Jefferson Standard Life Insurance Company, which was accepted by Mr. Ott for the corporation, subject, however, to a number of exceptions. The commitment required a 'liquidated damage deposit' of $21,600.00, and the corporation's check for this sum was issued by Mr. Ott and delivered to Stockton.

A revised proposal of December 6, 1966, was submitted by Jefferson Standard through Stockton and was accepted for the corporation by Mr. Ott, subject only to a modification in the restriction imposed by the proposal upon secondary financing for the purchase of furnishings. This conditional acceptance and the corporation's check for the required deposit were transmitted to Jefferson Standard by Stockton. By letter of January 31, 1967, Mr. Ott notified Stockton and Jefferson Standard that the corporation was canceling 'all preliminary agreements and commitments' because of dissatisfaction with the terms proposed and requested a return of its deposit of $21,600.00. Jefferson Standard refused this request, asserting that it had accepted the corporation's counterproposal by letter of December 22, 1966, to Stockton, the corporation's agent in the transaction, whereupon the negotiations had ripened into a mutually binding loan commitment.

This stockholders' action was brought by Jesse D. Shirer to recover the amount of the deposit. The complaint alleges that Jefferson Standard made 'unreasonable, technical, time consuming and trivial demands' upon the corporation, as a result of which the application for a loan was withdrawn, and return of the deposit was demanded; and that 'no contract ever came into existence' between the parties.

The answer alleges that the negotiations between the parties resulted in a binding contract, which has been breached by the corporation, and pursuant to which Jefferson Standard is entitled to retain the deposit of $21,600.00 as liquidated damages.

It was, in effect, conceded at the trial that the merits of the controversy depended upon whether the proof established a binding contract between the parties, I.e., on the part of Jefferson Standard to make a loan of.$540,000.00, on specified terms, and on the part of the corporation to accept the loan on such terms. If so, Jefferson Standard was entitled to retain the deposit as liquidated damages for the corporation's breach of contract. If not, the corporation was entitled to judgment against Jefferson Standard for the sum deposited.

The corporation's conditional acceptance of Jefferson Standard's proposal of December 6, 1966, was in effect a counterproposal, which, like any offer to contract, could be withdrawn without prejudice prior to acceptance. Plaintiff rested his case at the trial below on prima facie evidence that the corporation had received no notice of acceptance of its counterproposal until after it had been withdrawn and the action commenced.

Jefferson Standard undertook to prove acceptance of the corporation's counterproposal by introduction of a carbon copy of a letter from it to Stockton, dated December 22, 1966, which acknowledged...

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1 cases
  • Nelson v. Merritt
    • United States
    • Court of Appeals of South Carolina
    • 14 Diciembre 1983
    ...exceptions that relate to tuition payments. A failure to argue an exception constitutes an abandonment of it. Shirer v. O.W.S. & Assocs., 253 S.C. 232, 169 S.E.2d 621 (1969); Cudd v. John Hancock Mutual Life Ins. Co., 310 S.E.2d 830 (S.C.App., 1983). We, therefore, do not treat those except......

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