Tate v. Le Master
| Decision Date | 24 June 1957 |
| Docket Number | No. 17314,17314 |
| Citation | 231 S.C. 429,99 S.E.2d 39 |
| Parties | James F. TATE, Plaintiff-Respondent, v. H. G. LE MASTER, Defendant-Appellant. |
| Court | South Carolina Supreme Court |
Arnold R. Merchant, Spartanburg, for defendant-appellant.
Claude R. Dunbar, Spartanburg, for plaintiff-respondent.
In an action to recover the sum of five hundred ($500) dollars paid by the plaintiff to the defendant in a transaction relating to the purchase and sale of real estate, plaintiff obtained a verdict for that amount, with interest; and the defendant appeals.
Except for (1) respondent's check evidencing the payment, and (2) appellant's receipt therefor, the transaction between the parties was verbal; and the evidence as to its terms was, to say the least, conflicting. It appears undisputed that appellant owned and resided on a tract of some twenty-three acres in Spartanburg County, known as Mimosa Lake. He kept the lake stocked with fish, and rented to all comers the right to fish therein. Among his customers was the respondent, whose version of the transaction between them is set forth in his amended complaint substantially as follows:
On November 5, 1955, defendant offered to sell the Mimosa Lake property to plaintiff for $11,000, agreeing to give the plaintiff through November 10, 1955, to decide whether or not he would take it, and also agreeing that plaintiff should make a 'down payment' of $500, which would be refunded in the event that he should decide not to take the property and should so inform the defendant on November 10. Plaintiff made said 'down payment'; and thereafter, having decided not to take the property, went to the defendant's home on the morning of November 10 to so inform him, and, finding no one there, went again on the following day and then and there informed the defendant that he would not take the property, and asked for the return of his $500. Defendant did not at that time refuse to return the money, but merely told plaintiff that he would see him later. Thereafter, following another visit from the plaintiff, defendant on or about November 26, 1955 informed the plaintiff that, having had legal advice, he had decided to consider their trade closed and the money forfeited. Plaintiff alleged that by reason of these facts defendant was indebted to him in the amount of $500, with interest from November 11, 1955; and judgment in that amount was prayed.
The defendant's version is set forth in his amended answer as follows:
The prayer of the answer is that the complaint be dismissed with costs, 'and that the Five Hundred ($500) Dollars heretofore paid to the defendant by the plaintiff be declared by the Court as forfeited to the defendant, and for such other and further relief as to the Court may seem just, equitable and proper.'
The respondent's check, in evidence, is in the amount of $500, dated November 5, 1955, and payable to the order of the appellant. It bears the payee's endorsement, and is perforated as paid by the drawee bank under date November 7, 1955. The receipt in evidence, dated November 5, 1955 reads:
'Received of J. F. Tate 500 and No/100 Dollars
'Down Payment on Mimosa Lake.
'H. G. LeMaster'
It appears that respondent, having learned that the property was for sale, went there with his wife on Saturday, November 5, 1955. To quote from his testimony:
'Q. When you and your wife got back down at the lake, who did you find in the yard? A. We found him.
'Q. You mean the defendant? A. That's right.
'Q. What conversation took place there? A. I asked him what he asked for it. He said '$12,000.00'. I said, 'Wouldn't you take eleven thousand from me?' He says, 'I might do it'. Well, I says, He says, 'That's fine".
Respondent testified further, that following the conversation just mentioned he and his wife and appellant went into the latter's house, where were appellant's wife and a younger couple (appellant's son and daughter-in-law); that they 'laughed and talked', and that respondent told appellant that if he should decide to take the place he could not take it over until March, and would like appellant to stay there until then; that he told appellant he 'would let him know by Thursday'; and that he then gave appellant his check and was given the receipt before mentioned, which had been written by the young man. To quote further:
* * *
* * *
Respondent's testimony with regard to the transaction of November 5 was corroborated by that of his wife. So far as it concerned agreement between him and appellant that he should have until the following Thursday (November 10) in which to decide whether or not to take the property, and that should he decide not to take it and so notify appellant on or before November 10 his payment of $500 would be refunded, it was flatly contradicted by the testimony of appellant and his wife, his son, and his daughter-in-law, all of whom testified that the deal was closed on November 5, that the words 'Down payment on Mimosa Lake' were inserted in the receipt at respondent's request, and that nothing was said to the effect that he should have until the following Thursday to make up his mind concerning the purchase.
As to subsequent events, respondent testified as follows:
On Thursday, November 10, he went to appellant's house about 10:00 o'clock in the morning, for the purpose of telling him that he would not be able to purchase the property, and of getting his money back; but he found no one there. The next day, Friday, he went again, about 7:00 o'clock in the evening, and finding appellant at home, told him that he would not be able to take the place, and asked if he would give him back his check. Appellant made no reply, and respondent left. About a week later, respondent returned, told appellant again that he couldn't take the place and that he would like to have his check back, and asked appellant what he was going to do about it, to which the latter replied that he hadn't made up his mind, and that when he did he would let respondent know. Respondent did not see appellant again, but received a letter from him dated November 26, 1955, reading as follows:
'Dear Mr. Tate:
'I have had legal advice on the matter and have decided to consider our deal closed with your money forfeited.
'Sincerely,
'H. G. LeMaster'
Respondent admitted that on November 30, following receipt of the letter of November 26 just mentioned, he wrote to appellant as follows:
'Mr. LeMaster:
'Dear Sir:
'I received your letter today and was very much disappointed in your decision in regard to the money.
'Therefore, if you refuse to give me my money back, you will not be able to sell the place.
'I told you that Saturday that I would let you know the following Thursday if I would or would not take the place.
'Some of your friends that you have been asking advice from are my friends, too, and they have been telling me.
'I considered you one of my best friends and am really hurt over the way you have done about the money.
'Am very sorry that I'm going to have to turn it over to a lawyer to handle from now on.
'J. F. Tate'
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State v. Hollman
...incompetence was made to any testimony; the 'Ground For Appeal' fails to comply with Section 6 of Rule 4 of this court, Tate v. LeMaster, 231 S.C. 429, 99 S.E.2d 39, and the contention sought to be raised by it, not having been argued on appeal, is deemed to have been abandoned. Saxon v. Sa......
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...Parties to a contract may stipulate as to the amount of liquidated damages owed in the event of nonperformance. Tate v. Le Master, 231 S.C. 429, 99 S.E.2d 39 (1957). Where, however, the sum stipulated is plainly disproportionate to any probable damage resulting from breach of contract, the ......
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...may stipulate that a breaching party will lose a right to which the party is entitled under the agreement. Tate v. Le Master, 231 S.C. 429, 441–42, 99 S.E.2d 39, 45–46 (1957) (providing that parties may stipulate to the “forfeiture” of rights under a contract). However, if the stipulation i......
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