Watson v. Paschall

• Decision Date: 19 February 1913
• Citation: 77 S.E. 291,93 S.C. 537
• Parties: WATSON v. PASCHALL et al.
• Court: South Carolina Supreme Court

77 S.E. 291

93 S.C. 537

WATSON v. PASCHALL et al.

Supreme Court of South Carolina

February 19, 1913

Appeal from Common Pleas Circuit Court of Chesterfield County; Robt. Aldrich, Judge.

"To be officially reported."

See also, 83 S.C. 366, 65 S.E. 337.

R. T Caston, Edward McIver, and W. P. Pollock, all of Cheraw, for appellants. Stevenson, Matheson & Prince, of Cheraw, for respondent.

GARY C.J.

This is an action for commissions alleged to be due the plaintiff as broker for negotiating the sale of the timber on certain lands. There was a former decision in this case, which is reported in 83 S.C. 366, 65 S.E. 337. On the 21st of February, 1905, the plaintiff and the defendants entered into an agreement, the terms of which are embodied in the following letter: "Mr. J. R. Paschall, Charleston, W Va.: I hereby agree with you to accept five thousand (5,000) dollars' commissions, for the sale of your timber to Holley & Stephenson, or to any others who may hold under them, in any deal which you may make with Holley & Stephenson; the same to be paid twenty-five hundred dollars out of first cash payment, and twenty-five hundred dollars out of the second payment. E. T. Watson." On the 21st of February, 1905, the firm of Holley & Stephenson made the following offer to the defendants: "Gentlemen: We will pay ninety thousand ($90,000) dollars for the timber covered by your option dated 22d of December, 1904, to the undersigned, Holley & Stephenson, and also the timber on the McNair, Covington, Delaney, Ingram, Douglass, Ellerbe, Campbell and Frost tracts, mentioned in said option. ***" The option dated the 22d of December, 1904, related to the timber on lands owned by the defendants, while the said offer, not only embraced those, but adjoining lands of the parties therein mentioned. In order to induce Holley & Stephenson to buy the timber on the lands owned by the defendants, they stated that they would undertake to buy said additional lands at a price not exceeding five thousand dollars, and that they would let Holley & Stephenson have them at the price paid for them. Holley & Stephenson rejected this offer. On the 27th of February, 1905, the plaintiff telegraphed to the defendants: "Stephenson will not increase offer. Preparing to send to examine other property. Think best accept." In answer to the question, "What was the next that occurred between you and Mr. Paschall"? the plaintiff testified as follows: "A. Following the telegram which has been put in evidence, Mr. Paschall called me up over the long-distance telephone on the morning of the 28th, and asked me what the situation was, and I told him, as far as I could see, we couldn't do anything more, and he asked me what I thought my people would be willing to give for the timber, and I told him I thought they would give $90,000 for the timber under option, and he told me to sell it. I told him I would go and see Mr. Stephenson, and asked Mr. Paschall where he was, and he told me to wire him to Warrenton. I went to see Stephenson, and offered him the timber for $90,000, the timber under option, and he declined it, and I wired Mr. Paschall-- Q. Did you send this telegram to Mr. Paschall? A. Yes, sir; I sent this telegram to Mr. Paschall."

The telegram was as follows: "Stephenson will give ninety thousand for the timber, including additional tracts. Offer subject immediate acceptance--can't raise him a penny." The defendants sent the following answer to that telegram: "We accepted Mr. Stephenson's offer; if he declines to stand up, we can do no more business with him." When the telegram was delivered to the plaintiff, it had been erroneously transmitted in two particulars: The word "accepted" had been changed into "accept," and the word "no" had been omitted; so that it read as follows: "We accept Mr. Stephenson's offer; if he declines to stand up, we can do more business with him." The defendants refused to convey the lands mentioned in the telegram, which Watson sent to them on the 28th of February, 1905.

His honor, the presiding judge, upon the request of the plaintiff's attorneys, charged the jury as follows "If it being admitted that this telegram was in reply to the telegram in evidence, reading as follows: 'Stephenson will give ninety thousand for timber including additional tracts. Offer subject to immediate acceptance--can't raise him a penny'--under the construction of the telegram by the Supreme Court in this case, the court construes the two telegrams together to mean that the defendants accepted the proposition contained in the telegram which they answered." The error assigned is that it was a charge on the facts. The plaintiff in his testimony thus states his contention: "The situation is simply this: That Mr. Stephenson was offering $90,000 for the entire boundary, and Mr. Paschall up to the 28th of February was wanting to deal on the timber under option. I was trying to get one or the other to make the concession and close...