Turner v. Carey

• Decision Date: 01 June 1955
• Docket Number: No. 17008,17008
• Citation: 227 S.C. 298,87 S.E.2d 871
• Parties: S. E. TURNER, Respondent, v. P. A. CAREY, Appellant.
• Court: South Carolina Supreme Court

Page 871

87 S.E.2d 871

227 S.C. 298

S. E. TURNER, Respondent, v. P. A. CAREY, Appellant.

No. 17008.

Supreme Court of South Carolina.

June 1, 1955.

T. Sam Means, Jr., S. R. Watt, Spartanburg, for appellant.

E. W. Johnson, Spartanburg, for respondent.

OXNER, Justice.

On June 3, 1948, appellant, P. A. Carey, Sr., sold to respondent, S. E. Turner, a house and lot near the City of Spartanburg for $11,000. Turner assumed a mortgage for $6,000 held by the Citizens and Southern National Bank, gave a second mortgage to Carey for $2,000, and paid the balance of $3,000 in cash. The mortgage held by the Bank was payable in monthly installments of $62.18. The $2,000 mortgage held by Carey was payable in installments of $500, semi-annually.

On the day following the sale, Turner went into possession. It was a new house. Several months later he complained to Carey of leaks and other defects. Carey undertook to make the necessary repairs. Turner kept up the payments on both mortgages until December, 1949, when he consulted an attorney about the defective condition of the house, which he concluded had not been properly remedied. On the advice of counsel, he discontinued further payments on the mortgages. Up to this time he had paid to the Bank the total sum of $1,181.42 and to Carey on the second mortgage $1,000.

On January 26, 1950, Turner instituted an action against Carey in which he alleged that he had been induced to purchase this house through fraudulent representations, and sought to recover all amounts paid on the purchase price and the expenditures which he had made on the premises, together with punitive damages. He stated that he was ready and willing to reconvey the premises to Carey, asked that the mortgage given to Carey be cancelled, and that he be relieved of the assumption of the Bank's mortgage. The prayer of the complaint was for $10,000 'by way of actual and punitive damages; that he be relieved from the payment of any further indebtedness to the defendant and be relieved from the assumption of the mortgage referred to herein; and the costs of this action.'

An answer was duly filed by Carey, denying all allegations of fraud and deceit.

On May 12, 1950, the Bank brought an action to foreclose its mortgage, making Turner, as mortgagor and owner of the property, and Carey, as holder of a second mortgage, parties defendant. Carey duly answered and set up the mortgage held by him and asked that same be foreclosed and that he be given judgment against Turner for the amount due. Turner, in his answer, alleged the pendency of his suit against Carey based upon fraud and deceit, and asked that this action and the foreclosure proceedings be consolidated. In an order filed on December 28, 1950, Judge Greneker refused the motion to consolidate, appointed a receiver to take charge of the property and collect the rents, and referred the foreclosure case to the Master for Spartanburg County. There was no appeal from his order. A reference was held by the Master on July 12, 1951, at which all parties agreed as to the amounts due on the two mortgages. In a report filed on July 16th, the Master recommended that the Bank be given judgment for the amount due on its mortgage and Carey judgment for the amount due on the mortgage held by him, and that both mortgages be foreclosed and the property sold. This report was confirmed in a decree by Judge Littlejohn filed on the same day, to which all parties consented. In this decree Carey was awarded judgment against Turner for $1,117.40, representing the principal and interest due on the second mortgage, together with attorneys' fees. The Court directed that the property be sold in August, 1951, and that the proceeds of sale, after payment of the Bank's mortgage and costs, be held subject to the further order of the Court.

On August 1, 1951, Turner vacated the premises. In accordance with the foreclosure decree, the property was sold on sales day in August, 1951, and bid in by Carey's son. It brought only enough to satisfy the Bank's mortgage, costs and taxes. The sale was confirmed on November 1, 1951, and thereafter on January 23, 1952, Carey's judgment against Turner for $1,117.40 was filed in the office of the Clerk of Court.

The suit instituted by Turner against Carey based on fraud and deceit was tried in January, 1952, and resulted in a verdict for Carey, the defendant. On plaintiff's motion, Judge Griffith, the presiding Judge, granted a new trial upon the ground that the verdict was against the greater weight of the evidence. On appeal by Carey to this Court, the order granting a new trial was affirmed. Turner v. Carey, 223 S.C. 477, 76 S.E.2d 671.

A second trial was had in October, 1953, before Judge Lewis. His charge clearly indicates that he regarded the action as one to recover damages for fraud and deceit. On the question of actual damages, he instructed the jury: 'The measure of actual damages would be the difference between the value of the house as it actually was and the value it would have been had it been constructed as represented. The difference between those two values, if any, would be the amount of actual damages that the plaintiff would be entitled to recover.' He also submitted to the jury the question of punitive damages.

At the conclusion of his charge, the jury was temporarily excused as required by Section 10-1210 of the 1954 Cumulative Supplement to the Code, and counsel given an opportunity to express any objections to the charge, or to request additional instructions. None of the parties made any objection to the Court's construction of the complaint, or to the measure of damages given in the charge. The jury returned the following verdict: 'We, the jury, find for the plaintiff actual damages in the sum of four thousand, two hundred sixty-five dollars and no cents.' Thereupon the following occurred:

'Mr. Johnson (counsel for plaintiff): Your Honor, before you dismiss the jury I would like to have the Court ask the jury if that eliminates the deficiency judgment. We asked for affirmative relief against it, and I want to know if the jury deducted that, or if they conclude that the deficiency judgment was still in effect.

'The Court: Mr. Johnson, I can't have the jury pass upon that now. My ruling is that we will have to thrash that out now at a later time.'

Carey's counsel made no comment on the foregoing. They merely noted a motion for a new trial, which was later withdrawn. Thereafter Turner's counsel gave notice of a motion 'for an order (1) determining whether or not the verdict of the jury for Four thousand, Two Hundred Sixty-five ($4,265.00) Dollars included or excluded the...