Turner v. Carey
| Decision Date | 02 July 1953 |
| Docket Number | No. 16758,16758 |
| Citation | 76 S.E.2d 671,223 S.C. 477 |
| Parties | TURNER v. CAREY. |
| Court | South Carolina Supreme Court |
S. R. Watt and T. Sam Means, Jr., Spartanburg, for appellant.
E. W. Johnson, Spartanburg, for respondent.
This appeal arises out of an action for fraud and misrepresentation commenced by respondent in the Court of Common Pleas for Spartanburg County.
The complaint alleges in substance that respondent purchased a new brickcrete house from appellant, that the said house was defective in certain particulars, and that the appellant, owner-builder, had fraudulently misrepresented the house in effecting the sale. It alleged respondent's ability to reconvey the premises to appellant and sought to recover payments and expenditures made on the premises and to have cancelled the evidence of indebtedness and actual and punitive damages in the sum of $10,000.
Appellant interposed a general denial and the matter came on to be heard before the Honorable Steve C. Griffith, presiding Judge, and a jury. At the close of the testimony, the jury viewed the house, both inside and out, and after being instructed by the trial Judge, rendered the following verdict: 'We the jury found for defendant not guilty.' Respondent made seasonable motion for a new trial and the presiding Judge after hearing oral argument and viewing the premises with consent of counsel for both sides issued the following Order on May 5, 1952, granting the motion to set aside the verdict and ordering a new trial:
'Upon hearing arguments on plaintiff's motion for a new trial, I stated that I did not feel that I would be justified in granting a new trial on the two specific legal grounds set forth in the motion and invited argument on the ground that the facts of the case, and furtherance of justice, require a new trial. And at the conclusion of the arguments I asked both parties to file memorandums and arguments, which has been done and which have been very helpful. After careful consideration of the matter I have reached the conclusion that I should deny the motion on the legal grounds but that I should grant the motion on the ground that the verdict is contrary to the evidence and the greater weight thereof. I am advertant to the principle that a verdict of a jury should not be lightly set aside on the ground that it is contrary to the weight of the evidence, and, too, in a proper case, it is a responsibility that a Trial Judge must assume. Wood v. Atlanta & C. Air Line Ry. Co., 19 S.C. 579.
'In this case, the jury deliberated for some time, and it looked as if a mistrial would result. The issue of fraud was involved which is always more or less confusing to a jury. The jury finally returned a verdict of 'not guilty'.
'A great many of the facts are not in dispute. On the purchase of an $11,000 home the plaintiff paid on the purchase price, on improving it and other items of expense, sums totaling in the neighborhood of $5,700. It was a new house, built by defendant, a dealer in real estate, for sale to the public. There is very little difference in plaintiff's and defendant's testimony as to the representations made by the defendant prior to the sale as to the house being well constructed both in materials and workmanship. Plaintiff claims that the house did not come up to defendant's representations, in that it leaked through the walls, and on this point there was a conflict of testimony. But I am convinced that it weighs heavily in favor of the plaintiff.
'Returning again to the undisputed facts, the plaintiff reported to the defendant that the house leaked. The defendant in turn caused to go to this home a Mr. Long, by reason of his furnishing materials for the home. Mr. Long, after examination of the home, did some work on it and while working on it he was quoted by the plaintiff's wife as stating in substance that the house had not been properly built. Mr. Long was identified by the defendant's witnesses as a man of the highest integrity. He was in Court during the trial of this case and knew more about the condition of the home and what was causing the leaks, if any, than any other person. The defendant did not place him on the stand and I think it fair to apply the usual presumption that if he had testified, his testimony would not have been favorable to the defendant.
'But even if that is not true, there are other facts that convince me that the house did in fact leak. An inspection of the house from the outside convinced me that considerable work has been done and it was testified that Mr. Long did work on the outside. The spots on the outside walls clearly indicate that considerable work was done over them.
'In addition, the plaintiff's testimony and his conduct are convincing. Even after the defective condition in the house occurred, he continued to make payments, apparently hoping that the defendant would correct the condition. Finally he employed his present attorney, laid the matter before him, in which he stated in substance that he knew not what to do, as the defective condition of the house had not been corrected and he felt that he had put into the house more than it was worth in that condition; and on the other hand he owed more than it was worth. After consulting his attorney he discontinued making payments and this suit followed.
'The plaintiff, following the engagement of his attorney, discontinued making any payments on the two mortgages covering the property, which he had given to the defendant as a portion of the purchase price. One of the mortgages had been assigned by the defendant to a bank; the other, a second mortgage, was retained by the defendant. Shortly after plaintiff commenced this action the bank commenced foreclosure proceedings on the mortgage held by it, making the defendant and plaintiff parties, and the defendant asked for foreclosure of his second mortgage. Plaintiff sought to have the action in foreclosure consolidated with this action, and this relief was denied him. The foreclosure proceeding resulted in a decree of foreclosure and sale, and the property was sold by the Master in August, 1951, for $6,250, just about enough to pay the first mortgage and the expenses of foreclosure. The defendant's son was the purchaser at this sale. The defendant in that foreclosure proceeding obtained a deficiency judgment in excess of $1,100 on his second mortgage. The Master, a member of this Bar of the highest integrity, testified that in recent years property sold by him had been bringing good...
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Nichols v. Craven
...but involved a consideration of the facts and the conduct of the trial.' Sellars v. Collins, 212 S.C. 26, 46 S.E.2d 176.' Turner v. Carey, S.C., 76 S.E.2d 671, 673. An examination of the order granting a new trial as to the defendant, Craven, reveals that such order was based upon the facts......
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...law and fact, it is not appealable. Sellars v. Collins, et al., 212 S.C. 26, 46 S.E.2d 176, and the cases therein cited. Turner v. Carey, 223 S.C. 477, 76 S.E.2d 671; Nichols v. Craven, 224 S.C. 244, 78 S.E.2d 376; and Smith v. Traxler, 228 S.C. 418, 90 S.E.2d The case of Massey v. Adams, 3......
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Turner v. Carey
...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 o......
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Knight v. Johnson
...this Court, but when the order is based upon questions of fact, or upon questions of law and fact, it is not appealable. Turner v. Carey, 223 S.C. 477, 76 S.E.2d 671. The trial judge stated in his order: 'I have now concluded, after a study of the transcript of record and the authorities, t......