Walker v. Preacher

• Decision Date: 09 November 1938
• Docket Number: 14767.
• Citation: 199 S.E. 675,188 S.C. 431
• Parties: WALKER v. PREACHER et al.
• Court: South Carolina Supreme Court

199 S.E. 675

188 S.C. 431

WALKER v. PREACHER et al.

No. 14767.

Supreme Court of South Carolina

November 9, 1938

Appeal from Common Pleas Circuit Court of Beaufort County; Philip H Stoll, Judge.

Action by J. B. Walker against W. B. Preacher and others for an amount allegedly due the plaintiff for timber which was standing on the plaintiff's land and was cut by the defendants, and for an injunction restraining trespasses upon the plaintiff's land, wherein the defendant W. B Preacher filed a counterclaim and cross-complaint. From an adverse judgment, the plaintiff appeals.

Reversed.

Thomas & Thomas, of Beaufort, and Randolph Murdaugh, of Hampton, for appellant.

A. C DePass, of Columbia, and W. Brantley Harvey, of Beaufort, for respondent.

FISHBURNE Justice.

The appellant owns a tract of land in Beaufort County, containing 1400 acres, known as Rose Hill Plantation. Under a verbal agreement he contracted with the respondent, W. B. Preacher, to sell to the latter certain sawmill timber standing on the land, for an agreed price per thousand feet. The contract was entered into in May, 1935, and the appellant alleges that under its terms and provisions he granted "to the said defendant permission to go upon said land hereinabove described known as Rose Hill Plantation, and to cut and remove from said land the sawmill timber standing on said land, until such time as this plaintiff should advise said defendant to stop cutting said timber. That said defendant agreed to pay to this plaintiff the sum of Two and 50/100 ($2.50) Dollars, per thousand feet, stumpage, mill cut, for said timber, as said timber was cut, said money to be paid every two weeks."

The complaint further sets forth that the respondent from time to time cut and removed from the land considerable timber and made small payments therefor under the contract, but had failed and refused to pay the entire amount due. That pursuant to the contract entered into between the parties, appellant elected to terminate the contract, for the reason that the respondent had breached the agreement in failing to make payment. It was alleged that the sum of $200 was due for timber already cut, and judgment was demanded for this amount. Under the allegation that the respondent had continued, over the protest of the appellant, to enter upon the land and to cut and remove timber, the appellant also prayed for an order restraining these trespasses.

The respondent, by way of counterclaim and cross complaint, admitted the oral agreement alleged by the appellant, except that provision of it which provided for its termination, to wit, until such time as plaintiff should advise the said defendant to stop cutting said timber. This was specifically denied, the respondent alleging that the contract was to be terminated only when all the timber suitable for sawmill purposes located on said premises was cut and sawed into lumber by him. The respondent claimed damages growing out of the alleged breach of the contract by the appellant, by reason of his having sold certain of the timber to the other named defendants, and prayed for an order restraining the appellant and his vendees, the Boykins, from trespassing upon the property. The appellant filed a reply to the counterclaim in which, among other things, he denied the material allegations of the counterclaim or cross complaint, and thereafter demurred to the counterclaim upon the ground that it did not state facts sufficient to constitute a cause of action, in that it appeared upon the face thereof that the counterclaim was based upon the breach of a parol contract, which was within the statute of frauds.

The court overruled the demurrer, holding that the verbal agreement alleged by the appellant in his complaint was identical with the contract alleged by the respondent in his counterclaim, and that the plaintiff's pleading in effect constituted a sufficient writing or memorandum of such contract, which would take it out of the statute of frauds, Code 1932, § 7044, and would amount to a waiver.

Under the statute of frauds, as in force in most of the states, it appears to be well settled that, if sufficiently definite and certain, and signed by the party to be charged, or by his agent or attorney on his behalf, a pleading admitting a parol agreement within the statute may...