Smith v. Traxler, 17090

• Decision Date: 22 November 1955
• Docket Number: No. 17090,17090
• Citation: 90 S.E.2d 482,228 S.C. 418
• Parties: J. Leonard SMITH, Respondent, v. L. G. TRAXLER, Appellant.
• Court: South Carolina Supreme Court

Page 482

90 S.E.2d 482

228 S.C. 418

J. Leonard SMITH, Respondent, v. L. G. TRAXLER, Appellant.

No. 17090.

Supreme Court of South Carolina.

Nov. 22, 1955.

Butler & Chapman, Spartanburg, for appellant.

Claude R. Dunbar, Spartanburg, for respondent.

OXNER, Justice.

This action has previously been before us on the question of whether defendant should be permitted to amend his answer by adding the defense of the Statute of Frauds, Code 1952, § 11-101 et seq. Smith v. Traxler, 224 S.C. 290, 78 S.E.2d 630. We allowed the amendment and thereafter the case came on for trial at the 1954 term of the Court of Common Pleas for Spartanburg County. At the conclusion of plaintiff's testimony, the Court granted a motion by defendant for a nonsuit. Plaintiff noted a motion for a new trial which was duly heard and taken under advisement. The Presiding Judge later concluded that the case should have been submitted to the jury and that he was in error in granting a nonsuit. Accordingly, in January, 1955, an order was filed setting aside the order of nonsuit and granting plaintiff's motion for a new trial. From this order, defendant has appealed.

We are confronted at the outset with plaintiff's contention that the order sought to be reviewed is not now appealable. But we do not think the appeal is premature. The Court granted a nonsuit upon the legal ground that the evidence was insufficient to warrant submission of the case to a jury. It was not granted because of some failure of proof which might be supplied upon another trial but upon the ground that the evidence introduced affirmatively showed plaintiff was not entitled to recover. Plaintiff could have appealed from the order granting this nonsuit. If he had, the issue before this Court on such an appeal would have been whether there was sufficient evidence to warrant submission of the case to the jury, which is precisely the question now before us. Instead of appealing directly to this Court, plaintiff sought to remedy the alleged error by a motion for a new trial. The trial Judge granted this motion because he conceived that error of law had been committed in granting a nonsuit.

'It is well settled in this State that an order granting or refusing a new trial when based solely on an error of law is subject to review by this Court, but when the order is based upon question of fact, or upon both questions of law and fact, it is not appealable.' Sellars v. Collins, 212 S.C. 26, 46 S.E.2d 176, 177. In the later case of Carolina Aviation, Inc., v. Glens Falls Ins. Co., 214 S.C. 222, 51 S.E.2d 757, the trial Judge at the conclusion of the evidence, directed a verdict for the defendant. Upon motion of plaintiff, he reversed his former holding and granted a new trial. We held that an order granting a new trial on the ground that a verdict was improperly directed for the defendant was appealable.

It follows from the foregoing authorities that the order granting a new trial in the instant case having been based solely on legal grounds, is appeable. In reaching this conclusion we have not overlooked the case of Agnew v. Adams, 24 S.C. 86, upon which plaintiff principally relies. But we think that case presented a different factual situation and does not govern the question before us.

We now turn to the questions presented on the merits of the controversy. They can better be understood after a review of the testimony, which discloses the following facts:

On March 23, 1948, defendant leased to plaintiff for a period of three years commencing June 1, 1948, a lot of land in the City of Spartanburg, fronting 50 feet on Kennedy Street and having a uniform depth of 140 feet, with an option to the lessee to renew said lease for an additional period of two years. Among other covenants and provisions, the lease contained the following first-refusal-to-purchase option:

'It is further mutually understood and agreed that if Lessor receives an offer for said property and decides that he wishes to sell same, then and in that event, Lessee shall be given the option of buying said property at the price which Lessor has been offered for the same, Provided he exercises said option within five (5) days after notice from Lessor of the offer which he has received.'

Plaintiff duly entered into possession under said lease and has since operated on the premises a liquor store from which he has received a rather lucrative income.

Defendant owned another lot fronting 50 feet on Kennedy Street, adjacent to and of the same size as the lot leased to plaintiff, upon which there was operated a barbecue stand and beer parlor. Sometime in June, 1950, Harold E. McElhanney, a Spartanburg business man, through T. J. Willard, a local real estate agent, approached defendant and inquired if he would be interested in selling both lots, having a combined frontage of 100 feet on Kennedy Street, for $18,000. Defendant replied that he was not in a position to sell until he had an opportunity of contacting plaintiff and ascertaining whether he wished to exercise the option contained in his lease. There is some conflict in the testimony as to the date on which plaintiff was notified of this offer and as to his response.

According to Willard, the real estate agent, plaintiff must have been contacted on Junw 13th or 14th since Willard said that on the latter date defendant reported to him that he had just discussed the matter with plaintiff who said he was not interested in buying the property. Defendant thereupon stated to Willard that he was ready to enter into the contract with McElhanney. This contract was promptly prepared and executed on June 14, 1950. It provided for a sale of both lots, subject to existing leases thereon, to McElhanney for $18,000, $1,000 of which was paid at the time of execution.

Plaintiff's version, which must be accepted in passing on a nonsuit, is as follows: On Friday, June 16th, defendant notified him of the McElhanney offer and inquired if he was interested in buying the two lots at that price. He replied that he would be unable to give an answer until he contacted his banker with reference to a loan. After seeing his banker the next day, he endeavored to get in touch with defendant so as to notify him that he would take both lots at the price of $18,000. After he was unable to locate defendant, he consulted his attorney who thereafter advised him as to all steps taken and prepared the letters hereinafter mentioned.

On June 19th plaintiff wrote defendant a letter, which was delivered in person on the same date, stating that he was exercising the option to buy the two lots for $18,000 which he was ready to pay upon delivery of deed conveying good title, and requesting defendant to forward a contract of sale at his earliest convenience. Upon reading the letter, defendant told plaintiff that he had already signed a contract with another party (whom plaintiff later learned to be McElhanney) on which a deposit had been made, but felt that he could get out of that contract and would let plaintiff have the property.

On June 21st plaintiff wrote defendant a letter, which was delivered in person to an employee in the latter's office, in which it was stated: 'After I delivered my letter to you dated June 19, 1950, stating that I have decided to exercise my option and buy the property therein mentioned for $18,000.00 cash, you have informed me that you had signed an agreement to sell this property to another party, but that you would attempt to get out of this agreement with the other party and sell the property to me.' Plaintiff then mentioned several matters connected with the title which sould be corrected and further called attention to the fact that defendant had given a mortgage on the property for $19,500 which would have to be released. Plaintiff concluded thelatter by saying that he was prepared to pay cash for the property upon delivery of the deed conveying good title.

Several days after the foregoing letter was written, defendant saw plaintiff and stated that he was having trouble getting out of the agreement but that he had received an offer of $12,000 for the property leased by plaintiff. Plaintiff then asked defendant to give him written notice of such an offer. This was not done and on June 26, 1950, plaintiff wrote defendant as follows:

'Subject to my rights to proceed against you for breach of contract in failing to deliver me a deed to the 100 feet of property on Kennedy Street owned by you and occupied by me and McClesky, at the price of $18,000.00, I hereby exercise my option to purchase from you the 50 feet frontage on the South side of Kennedy Street running back 140 feet to alley, being the property owned by you and occupied by me under lease from you, at the price of $12,000.00 cash.

'I am prepared to pay cash for this property upon your delivering to me a good, clear and marketable title in and to this property in fee simple, freed and discharged from all legal claims against same. Kindly advise in writing that you are deeding me this property for this price and when you will be ready, able and willing to deliver such title to me, and oblige.'

Notwithstanding the foregoing correspondence, the defendant apparently intended carrying out his contract with McElhanney. Sometime during the latter part of June, the record not disclosing the exact date, defendant's attorney requested the real estate agent to inquire of McElhanney if the latter would be agreeable to taking title by two deeds, one in consideration of $12,000 covering the premises occupied by plaintiff and the other in consideration of $6,000 covering the lot on which the barbecue stand was conducted. McElhanney stated that he had no objection to this arrangement. Deeds on this basis were accordingly prepared and the parties, along with their attorneys, met in the office of defendant's attorney on June 30, 1950, for the purpose of closing the transaction. Counsel representing McElhanney and a bank...