White v. McKnight

• Decision Date: 01 June 1928
• Docket Number: 12456.
• Citation: 143 S.E. 552,146 S.C. 59
• Parties: WHITE v. McKNIGHT et al.
• Court: South Carolina Supreme Court

143 S.E. 552

146 S.C. 59

WHITE v. McKNIGHT et al.

No. 12456.

Supreme Court of South Carolina

June 1, 1928

Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.

Action by L. L. White against J. A. McKnight and others, as executors of the will of L. W. Jenkins, deceased. Judgment for plaintiff, and defendants appeal. Reversed and remanded with leave to move for amendment of the complaint.

Epps & Levy and Lee & Moise, all of Sumter, for appellants.

Harby Nash & Hodges, of Sumter, for respondent.

COTHRAN J.

This is an action for damages, in the sum of $16,591, on account of the alleged breach of a contract entered into by and between the deceased testator of the defendant executors, L. W. Jenkins, and the plaintiff, L. L. White, to devise to the plaintiff a certain tract of land. It needs to be emphasized at the outset that it is not an action for the specific performance of a contract to devise, an action cognizable in equity, but an action for damages for the breach of such contract, an action strictly cognizable at law.

The complaint alleges the agreement, without stating whether it was in writing or by parol, the performance by the plaintiff of his part of the agreement up to the time of the death of Jenkins, and that Jenkins had failed to carry out the agreement to devise, but had conveyed the property to other parties shortly before his death.

The answer of the defendants contains a plea of the statute of frauds, and alleges a mutual revocation of the agreement by the respective parties.

The case was placed on calendar 1, and was tried before his honor, Judge Wilson, and a jury, at the summer term, 1926. The defendants moved for a nonsuit and also for a directed verdict upon the grounds hereinafter considered, both of which were refused. The jury rendered a verdict in favor of the plaintiff for $4,500.

The verdict was rendered on August 7, 1926. The court was adjourned sine die on that day. Thereafter, on August 11th, his honor, we assume after he had returned to his home, signed and had filed the following order:

"This was an action tried before me and a jury at Sunter, S. C., on August 6th and 7th, resulting in a verdict in favor of the plaintiff in the sum of forty-five hundred ($4,500) dollars. The suit was brought for the alleged breach of an oral contract to devise lands; it being contended by the plaintiff that there had been sufficient part performance of the contract on his part to take it out of the statute of frauds. The defendant contended that the doctrine of part performance was exclusively an equitable doctrine and could not be relied upon by the plaintiff in this action; whereupon the plaintiff, in open court, offered that the judge of the court, as chancellor, do pass upon the alleged equitable issue if the defendant conceived that to be the proper mode of trial. The defendants would not agree to this proposition and the entire case was submitted to the jury. The court took the view, and so held, that the plaintiff could rely upon part performance in a proceeding of this character, and that it was proper to submit the case to the jury, but, inasmuch as the case may be appealed and the Supreme Court may hold that the issue should have been passed upon by the court, it seems proper that the court express its views as to the matter so that no retrial of this issue will be necessary. The court is of the opinion that, the jury being the judges of the testimony, the claim of part performance has been sustained.

It is ordered, adjudged, and decreed that, the jury having found as a matter of fact that the plaintiff fully performed the alleged contract on his part up to the time that defendants' testate breached the contract by conveying away the property, which act excused any further performance on the part of the plaintiff, the court therefore finds as a matter of fact and of law that such part performance on the part of the plaintiff, as found by the jury, was and is sufficient to take the contract out of the statute of frauds.

It is further ordered, adjudged, and decreed that the verdict of the jury herein be and is hereby confirmed, and that the plaintiff have judgment against the defendants for the sum of forty-five hundred ($4,500) dollars, with interest from the 7th day of August, 1926, the date of said verdict, and for costs.

August 11th, 1926,

Nunc pro tunc.

John S. Wilson, Judge Third Circuit."

The defendants have appealed from the judgment entered upon the verdict, and from the order of August 11th, upon exceptions which will hereinafter be considered.

The main contention of the appellants, that the trial judge erred in refusing their motion for a directed verdict, rests upon the following propositions:

(1) That under the statute of frauds a parol contract relating to the acquisition of an interest in real estate is not enforceable, save under exceptional conditions.

(2) That, notwithstanding the statute of frauds, the specific performance of such a contract may be enforced in equity, where there has been part performance of the contract by the party seeking relief.

(3) That the part performance which would sustain an action for specific performance, in equity, affords no relief in an action at law for damages resulting from the breach of such a parol contract.

(4) That there is no evidence in the case of such a memorandum or note in writing of the alleged contract as will relieve the bar of the statute of frauds.

The first proposition needs no other authority than the statute itself, section 5516, vol. 3, Code of 1922:

"No action shall be brought *** upon any contract or sale of lands, tenements or hereditaments, or interest in or concerning them *** unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith."

The second proposition is too well settled to require the citation of authorities.

The third proposition requires some elaboration. The party aggrieved by the breach of a contract relating to the acquisition by him of an interest in real estate has certain remedies both in law and in equity:

In equity (a) he may stand upon his contract and bring an action for its specific performance; or (b) he may abandon the contract for good cause, demand a rescission and a return of the value of the consideration paid by him.

At law (a) affirming the validity of the contract, he may sue for damages resulting from the other party's breach of the contract; or (b) he may sue for the value of the consideration paid by him.

In the case at bar, the plaintiff is not suing in equity, for the obvious reason that the testator conveyed the real estate in question to others, who are not parties to this action, and evidently the plaintiff could not bring home to them notice of his alleged contract with the testator. He is not suing at law for the value of the consideration paid by him upon the alleged contract, but he is suing at law for damages as stated; so that the remedies (a) and (b) in equity, and the remedy (b) at law are eliminated, leaving for consideration the remedy (a) at law.

The case of Davis v. Moore, 9 Rich. 215, appears to be directly in point. It was an action for damages for the breach of an oral contract to convey land, or in tort for misrepresentation. The court said:

"The plaintiff's right to maintain the action in either form has been insisted upon. A parol contract for the sale of land is within the fourth section of the statute of frauds, and it would be but an evasion of this provision of the statute if damages may be recovered for the breach of such a contract. *** It has been urged that the plaintiff's possession was in part performance of the contract, and that such a case is not embraced within the statute. Courts of equity have decreed the specific performance of a contract partly executed, but this is strictly an equitable doctrine, and we are not prepared to say that a party may recover damages for the breach of every contract which a court of equity would specifically enforce. *** But where an agreement has been partly carried into execution the better opinion is that relief is limited to the court of equity."

In Hillhouse v. Jennings, 60 S.C. 373, 38 S.E. 599, the plaintiff had made a verbal contract with the defendant, to commence at a later date and to work for one year. Plaintiff commenced work, and was discharged in the following June. He sued, first, for $8.50 back wages due under the contract; and, second, for $126.66 damages for breaking the contract. After holding that a contract for services to commence in the future and continuing for one year is obnoxious to the statute, the court uses the following language:

" Then it is again suggested that plaintiff was at least entitled to right to go to the jury to recover $8.50, due under the contract, before his discharge on June 19, 1899. It should be recalled that plaintiff has elected to sue on a contract not enforceable-a contract obnoxious to the provisions contained in section 4 of the statute against frauds and perjuries, and hence this position is not tenable. Then appellant suggests that the testimony offered by him should have been allowed. This was not error in the circuit judge, when he refused his permission to offer such testimony, for such testimony was in direct contradiction of the law, when the sole purpose for offering it was to sustain a verbal contract not to be performed during one year after its creation, as the cause of action set up by plaintiff. Nor will part performance of such contract relax the rule."

In the case of Mendelsohn v. Banov, 57 S.C. 147, 35 S.E 499, the plaintiff made a verbal contract to work for the defendant...