Sumner v. Bankhead
| Decision Date | 18 April 1922 |
| Docket Number | 10869. |
| Citation | 111 S.E. 891,119 S.C. 78 |
| Parties | SUMNER v. BANKHEAD. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of York County; Ernest Moore Judge.
Action by R. E. Sumner against J. W. Bankhead for specific performance of a contract to convey land. Judgment for the defendant, and the plaintiff appeals. Affirmed.
Wilson & Wilson, of Rock Hill, and Marion & Marion, of Chester, for appellant.
Gaston & Hamilton, of Chester, for respondent.
This is an action for specific performance, based upon the following contract:
C. A. Reese, for ...... R. F. Roach, Broker.
E. S. Kirk, for ....... J. W. Bankhead, Buyer.
Arnold P. White, for .. R. E. Sumner, Broker."
The respondent, the purchaser, refused to comply. The seller at the time of the making of the contract did not own the land, but had himself only a contract to purchase.
The case was tried before Judge Ernest Moore, who found that the contract was speculative, and under the case of Schmid v. Whitten, 114 S.C. 245, 103 S.E. 553, refused to require specific performance.
Specific performance is addressed to the sound discretion of the court of equity. Judge Moore found as a matter of fact from the evidence that the contract was speculative. In so finding he is abundantly sustained by the evidence. The seller did not own the land at the time he made the contract to sell, and before he took title, or the time had arrived at which he could get the title, he made a contract of resale. The appellant may have changed his mind, or his circumstances may have changed. If the appellant contracted to purchase for his own use, it would have been easy to have explained his change of purpose. He offered no explanation, but, on the contrary, he made a contract of sale in which he and his agent, whose business it was to negotiate sales of land, should divide share and share alike the $1,942.50, the forfeiture provided by the contract sued upon. The contract itself shows its speculative nature. It is true the case of Schmid v. Whitten, supra, was decided by a divided court, but it does not lose its binding authority for that reason. The first ground of exception cannot be sustained.
II. The only other question is: Did his honor err in not giving damages for the breach of the contract?
There was no error here. The contract itself provided the measure of damages, in the forfeiture of the initial payment, and that has been paid.
The judgment appealed from is affirmed.
GARY, C.J. (see opinion) and WATTS, J., concur.
COTHRAN, J. (see opinion), dissents.
The decision in the case of Schmid v. Whitten, 114 S.C. 245, 103 S.E. 553, was rendered by a divided court, three to two; the writer hereof wrote a dissenting opinion, in which Mr. Justice Hydrick concurred. That case is conclusive of the question now under consideration. As it is still of force, and is now a part of the law of the land, we conceive it to be our duty to recognize its authority and follow it, until it is overruled.
It seems to us that any other course would lead to endless confusion and uncertainty.
Action by vendor for specific performance of a contract for the sale of land.
The facts are as follows:
In the year 1920 one Good owned a tract of land, 185 acres, near Rock Hill, which he contracted to sell to the plaintiff, R. E. Sumner, for $14,506.75; $1,400 cash, which was paid, one-third of the remainder payable January 1, 1921, and the remaining two-thirds in three equal annual installments. This contract was entered into on the 27th of May, 1920.
On the 3d of August, 1920, the plaintiff, Sumner, contracted to sell the same place to the defendant, Bankhead, for $19,425; $1,942.50 cash, which was paid, and the remainder payable January 2, 1921.
On the 3d of September, 1920, Good executed a deed with renunciation of dower, conveying the land to the plaintiff, Sumner, which by agreement was deposited in escrow with the National Union Bank of Rock Hill, to be delivered to Sumner upon payment of the unpaid purchase price, $13,108, on January 2, 1921. The bank held a mortgage upon the land given by Good, and the apparent expectation of the parties was that upon the defendant Bankhead's compliance with his contract on January 2, 1921, $13,108 would be paid by Sumner to the bank, to be applied to the Good mortgage, and the deed of Good to Sumner held in escrow, delivered to Sumner.
Bankhead not complying with his contract on January 2, 1921, Sumner had to make other arrangements to pay the bank the amount necessary to obtain the deed held in escrow.
On January 3, 1921, Sumner tendered Bankhead a deed of the property, with renunciation of dower, and demanded the amount agreed to be paid. Bankhead refused to pay, and this action followed. No question has arisen as to the ability of the plaintiff to comply with his part of the contract, and none as to the bona fides of the contract, adequacy of the consideration, or other element than as below stated.
The defendant interposed several defenses to the action, among which was the contention that the contract was a speculative one upon his part, and that the plaintiff, not owning the title to the land at the time of the contract, "was merely trading or speculating on a land contract." No other defense is considered by the circuit judge in his decree, and, as the respondent has served no notice to sustain it upon other grounds, the discussion will be limited to the single question above suggested. He held in his decree that both parties entered into the contract solely as a speculative transaction, and following Schmid v. Whitten, 114 S.C. 245, 103 S.E. 553, that the court of equity, in the exercise of the discretion vested in it, will refuse to decree the specific performance of such a contract, and dismissed the complaint.
The finding that the defendant entered into the contract as a speculation may be assumed to be true; but, assuming that Sumner entered into the contract with Good as a speculation, the contract with the defendant certainly was not; it was rather the consummation, the closing out, of a previous speculative intent, which should not be permitted to inject its poison into this valid contract.
But be that as it may, I cannot and do not subscribe to the doctrine declared in the Schmid v. Whitten Case, and am of opinion that it should be promptly and decisively overruled. With the greatest respect for the learned justices who constituted the majority of the court in the promulgation of that opinion, I think that the havoc it has played in commercial transactions, the disintegration of the moral obligation to comply with solemn contracts, and the opening of a port of refuge to those who, with their eyes wide open, and, their greed for quick riches excited, are willing to repudiate their engagements under disappointing results, are sufficient justification for holding that it does not declare the law or the morals of this state.
It is but recent history to recall the wild orgy of speculation that followed the inflation of prices of all products and labor, and the quick response in the values of real estate. The buyer took his chances with the seller, each acting upon his individual judgment as to a matter that was a legitimate subject of contract; sales were made and quick results followed in profits earned; the spinning top, resting upon a very slight foundation, maintained its equilibrium as long as it was revolving, and all went merry; the revulsion came something happened, we do not know what, the top ceased to spin, and the crash came; many were caught with high-priced land upon their hands and contracts, honestly, legally, though speculatively, entered into, which tested their integrity, a storm that strained the stoutest timbers of the staunchest ships. Common honesty and manliness dictated compliance with losing ventures, the retention of the trust that others had reposed, and of self-respect. I think that it was unfortunate, an unkindness, to those for whom a natural sympathy was excited, who had been caught "with the bag to hold," to extend an opportunity of...
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Welling v. Crosland
...in character. This case does not come at all within the rule declared in Schmid v. Whitten, 114 S.C. 245, 103 S.E. 553, Sumner v. Bankhead, 119 S.C. 78, 111 S.E. 891, Scarborough v. Register, 123 S.C. 59, 116 S.E. 97, where the purchasers never expected to do anything with the land except t......
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Scarborough v. Register
...that the contract was "speculative." The essential facts of the case cannot be distinguished from those of the case of Sumner v. Bankhead, 119 S.C. 78, 111 S.E. 891, which facts this court applied the doctrine announced in the case of Schmidt v. Whitten, 114 S.C. 245, 103 S.E. 553. The indi......