Strang v. Weir

• Decision Date: 22 July 1896
• Citation: 25 S.E. 157,47 S.C. 307
• Parties: STRANG v. WEIR et al.
• Court: South Carolina Supreme Court

25 S.E. 157

47 S.C. 307

STRANG v. WEIR et al.

Supreme Court of South Carolina

July 22, 1896

Appeal from common pleas circuit court of Fairfield county; Benet Judge.

Suit by Jesse Beam against Thomas Weir and others. On the death of the plaintiff, the suit was continued in the name of his executor T. E. Strang. There was a judgment for plaintiff and defendants appeal. Reversed.

The report of the referee, referred to in the opinion, was as follows:

"This cause was referred to me by an order of this court of date the ___ day of ___, 1893, for the purpose of having the testimony taken and a report made on all the issues both of law and of fact. By virtue of the said order I held references at my office in Chester. S. C., on the 14th of June, July 6th, July 20th, and September 13th of this year at which I was attended by the parties and their attorneys. I heard the pleadings, took all the testimony that was offered, which is herewith submitted, heard argument on all the issues, and I would respectfully submit, as my report the following outlines of the pleadings, the facts that are established by the testimony, and my conclusions of the law of the case, to wit:

"(1) The pleadings:

"(a) The summons and complaint was served on the defendants on August 22, 1892. The complaint, in substance set forth that one of the defendants, Thomas Weir, while acting as the agent of the plaintiff, received certain moneys, to wit, $476.18, belonging to the plaintiff, and invested it in a tract of land, which is particularly described, taking the conveyance to himself and the other defendants; that he paid more than the said sum for the tract of land, and that, in case the court directed that the land be conveyed to the plaintiff, he (the plaintiff) was unable to pay the difference, and praying that the land be sold, and that out of the proceeds the plaintiff be repaid his money. The defendants demurred to the complaint, alleging that it did not state a cause of action. The demurrer was overruled, and (b) the defendants answered, admitting that the defendant Thomas Weir received the money as stated in the complaint, and that he invested it in the tract of land as stated, but avoided, by alleging that Thomas Weir invested the money in the tract of land by the direction and at the instance of the plaintiff, taking the conveyance, also, as he directed, and praying that the complaint be dismissed. After the testimony for the plaintiff was in, the defendants moved a nonsuit, which was refused. The plaintiff also asked that he be allowed to amend his complaint by the addition of a paragraph which asserted that the defendants had nothing which could respond to a judgment at law, which amendment was also refused.

"(2) The facts:

"There was considerable testimony taken, amounting to something like 40 pages, but much of it was cumulative, and the real important facts can be put in a small space. The plaintiff, Jesse Beam, is a feeble old man, slow of speech, and whose memory is impaired; but I cannot go as far as the defendant's attorney, and say that he is childish, or that his intellect is impaired, but he is fully competent to attend to ordinary business. Some time in November, 1891, the plaintiff was at the house of his son, Elijah Beam, and the defendant Thomas Weir was also there. While there, these three entered into a verbal agreement for the 'old man,' the plaintiff, to dispose of his property in the following manner: He was to give to his daughter, Mary Peay, the home place, containing about 112 acres, and she, in return, was to allow him to make that his home, though he reserved the right to stay with either of the others if he desired, and she was to pay him $20 per year. He was then to sell the 97-acre tract, put his rent money with the proceeds, and then buy a place with $500 of the money for his son Elijah, and with the other $500 buy a place for his daughter, the defendant Sarah J. Weir, and they were each to pay him $20 per year, and he was to have the privilege of staying with either of them when he desired. The defendant Thomas Weir told them, at this meeting, that he knew a man that would give $800 for the 97-acre tract. He testified, on the trial, that some time before this meeting his grandfather had told him that he wanted to divide out his property, so as to give each of his children a home, and also get a living for himself, and that he advised his grandfather against it; but I do not think he was sincere in this advice, as he immediately went to looking out for a purchaser for some of the property, so as to enable him to make the division. Had he been honest in his opposition, he would have told the 'old man' that the only way he could compel his children and grandchildren to treat him properly would be to hold on to his property himself. After the meeting at 'Lige's' house, at which neither Mary Peay nor Sarah Weir were present, Lige decided that, instead of letting his father sell the 97-acre tract of land, and giving him $500 of the money, he would take that tract, and pay his father $300 on it, which sum his father would invest, together with the money he got from his rent, in a place for Sarah. Jesse Beam agreed to this change, and he and Lige and Thomas Weir, the defendant, went to Blackstock, and there he executed and delivered to Elijah a deed for the 97-acre tract of land, which was, as expressed in the deed, upon the consideration of $300. None of the money was paid down, and the understanding was that it would be paid as soon as the rent money was collected, and would be used in purchasing a home for Sarah. On the same day Jesse Beam had a letter written to Sarah, or, rather, to Sarah and her husband, advising them that he had decided to divide out his property, and that they would get $500 to put into the land, and saying to them to make the arrangements, and he would have the money. He was unable to write himself, and the letter was written by Elijah's wife. Thomas Weir was also there, and had something to do with the letter. Mr. Beam swears that he had the letter written for the reason that he could not write himself, and says that what he intended to say was that he meant to help them get a home, and to ask them what that 'Cohen place' could be brought for. I am inclined to think that the 'old man's' ideas were not properly expressed in the letter, and that Thomas Weir, the defendant, who was there when the letter was written, and who impressed me as being something of a schemer, and as a man who had his eye on the main chance, 'had something to do' with the contents of the letter; but the letter is here, and its contents are as I have stated. To this letter no reply was ever received, and Mr. Beam swears positively that Sarah and David never accepted his plan for the division, but that Sarah refused to help support him, or to give him the $20 a year. This was not contradicted, though David was at the reference. The only testimony that conflicts with it is the statement of Elijah, who said, in his testimony, that he saw his father, with David and Sarah, in January, and heard him say to them that he would have $500 to put into a place, and that when they got ready they must let him know, and he would bring it or send it. I am, under these circumstances, obliged to find that the agreement as stated in the letter was not accepted by the defendant Sarah Weir. A deed to the 'home place' was made and delivered to Mary Peay by the plaintiff, and he has been living there since, so that she accepted the divide. Elijah had attended to the business of the plaintiff-that is, collecting his rents, selling his cotton, etc.--for a number of years, and, after this agreement had been made among some of the parties, the plaintiff sent his tenant to Elijah with the rent cotton, for Elijah to sell, as had been his cotton. Elijah sold the cotton, and paid the proceeds, and also the $300, to Thomas Weir, although he says himself that his father's directions to him were to pay it to Jane Weir, to be invested in a place for her. He says that he paid the money to Thomas Weir in December, and that his father demanded that the money be paid to him on the 8th of January, 1892. His exact statement is that his father never told him to give him the money, but that they met on the 8th of January, and his father then demanded a settlement. It was just about this time that Sarah Weir and her husband came up to see the 'old man,' and, as he says, they did not take to his plan of making a divide, and it is possible, and in reality, the whole trouble began just then. Thomas Weir, although the 'old man' swears that he was not his agent, I believe, from the testimony, from his connections with the various parties in the case, and from the circumstance that he did act in that capacity to a certain extent. Elijah Beam testified that there was a written authority to Thomas from the plaintiff, but this written, if there was one, was not produced, and under the rule it must be held that its being withheld is a circumstance going to show that it would be against Thomas Weir's interest if it were shown. I am satisfied that at one time the plaintiff fully intended putting the $465 that he got from Elijah and from his rent cotton into land for the defendant Sarah Weir, and that he meant to consult Elijah and also Thomas Weir

about it, but I am equally as well satisfied that he had never decided upon any particular tract, and that he never intended to allow Elijah and Thomas to go and buy any place they saw fit without consulting him. This is shown conclusively by the fact that, when Thomas Weir got ready to go to Winnsboro to fix up the title, he went to see the plaintiff, although there was then a breach. The plaintiff then demanded from Thomas Weir his money,

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