Sloan v. Lee

• Decision Date: 09 October 1922
• Docket Number: 11029.
• Parties: SLOAN v. LEE ET AL.
• Court: South Carolina Supreme Court

114 S.E. 408

121 S.C. 426

SLOAN v. LEE ET AL.

No. 11029.

Supreme Court of South Carolina

October 9, 1922

Appeal from Common Pleas Circuit Court, of Spartanburg County Edward McIver, Judge.

Action by C. B. Sloan against Maggie Lee and others. Judgment for defendants, and plaintiff appeals. Affirmed.

L. W Perrin, of Spartanburg, for appellant.

R. B Paslay and J. D. Andrews, both of Spartanburg, for respondents.

MARION J.

The defendants contracted with the plaintiff to rent a hotel in the city of Spartanburg, and gave a bond to secure faithful performance. This action was brought by plaintiff to recover damages on account of the alleged breach of the bond.

The defendants admitted the execution of the rental contract and of the bond, but set up the defense that the contract was procured by misrepresentation and fraud. The case was tried before Hon. Edward McIver, circuit judge, and a jury. From judgment on verdict for defendants, the plaintiff appeals.

Certain of the allegations of the answer were to the effect that defendants were induced to execute the rental contract and the bond by plaintiff's false representation that the hotel was a "first-class, clean, reputable, and paying enterprise"; that in fact the "hotel had a bad reputation, and, directly after defendants took charge of the same, a number of persons approached them for the purpose of renting rooms for immoral purposes"; and that, "when they became aware of the reputation of the hotel, they promptly declined to retain same, and turned the hotel back to the plaintiff."

1. Appellant's first contention (exceptions 1 to 5, inclusive) is that the trial judge erred in admitting over objection certain testimony of the defendants in regard to conversations with third parties not held in the presence of the plaintiff. It is suggested that these conversations were hearsay, and amounted merely to self-serving declarations on the part of the defendants. The record discloses that no specific grounds of objection to the admission of the testimony were stated at the trial. A ground of objection not ruled upon by the trial judge cannot be urged in this court. Allen v. Cooley, 53 S.C. 80, 30 S.E. 721; Norris v. Clinkscales, 59 S.C. 243, 37 S.E. 821; Smith v. Mills, etc., 100 S.C. 120, 84 S. T. 422; State v. Cooper (S. C.) 113 S.E. 132.

The only ruling of the presiding judge appears to have been to the effect that Mrs. Lee, one of the defendants, could testify that "she found that men were calling up" certain girls registered at the hotel, and that "she found it was a fact that people went there for dissolute practices." The testimony related to transactions which tended in some measure to establish that the use of the hotel was sought with more or less frequency for immoral purposes on account of its former repute and practices. If so, it related to an issue directly made by the pleadings. The relevancy of testimony is largely within the discretion of the trial judge, and we are satisfied there was no erroneous exercise of his discretion.

2. The appellant's second contention is that the presiding judge's definition of fraud in his charge to the jury was erroneous in that it omitted the essential element of scienter. The judge used, with elaboration, the following definition:

"Fraud is where one deceives another and causes him to do something which he would not otherwise have done by

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