Willis v. Hammond
| Decision Date | 30 March 1894 |
| Parties | WILLIS v. HAMMOND. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Charleston county; James Aldrich, Judge.
Action by Edward Willis against Samuel Hammond on a contract relating to a joint venture in the purchase and sale of land at a profit. From a judgment for plaintiff, defendant appeals. Affirmed.
Buist & Buist, for appellant.
Mitchell & Smith, for respondent.
Edward Willis, of the city of Charleston, through a number of years beginning with 1867, had devoted much time to the investigation of phosphatic deposits in the lands in what is known as the "phosphate territory" of this state. He discovered that a tract of land containing 605 acres known as the "Saul Place," and located in Colleton county, was rich in such phosphatic deposits. He sought out Samuel Hammond, who was then clerking in a bookstore in the city of Charleston, and informed him of the value of these lands, because of these phosphatic deposits therein; at the same time informing him that an option for its purchase, at the price of $5,000, could be obtained from the owners thereof by paying down $600 in cash, and that the same could be sold to some New York parties for the sum of $10,000. After having visited the lands in question, Samuel Hammond agreed with Willis that he would advance the money, and from the proceeds of sale, after his reimbursement for all moneys paid out, one-half of the net proceeds should be retained by Hammond, and one-half paid over to Edward Willis. On February 26, 1889, an option in writing until April 1, 1889, on said property, was given by the owner of the Saul place in favor of Samuel Hammond. By this arrangement a commission of $200 was paid by the agent of the owner to Hammond, which $200 was equally divided between Hammond and Willis. In view of Hammond's proposed absence from the city of Charleston and in order that Willis might be clothed with power to negotiate a sale of the land to the New York parties, an agreement in writing, as follows, was signed by Edward Willis and Samuel Hammond: On the same day the said Hammond executed, under his hand and seal, a power of attorney unto Edward Willis, by whose terms the said Willis was authorized, as such attorney in fact for the said Hammond, to sell the said lands, and the said Hammond agreed to make title to any one named, upon the payment of the purchase money. The sale of the land to the New York parties failed, through their declining the trade offered. On 26th June, 1889, the deeds were made to Samuel Hammond, as the purchaser, under his options hereinbefore referred to. Although Willis exerted himself to find a purchaser, carrying party after party to view the lands, and working some himself in mining for phosphate rock, thereon, yet it was not until February, 1891, under an option given in November, 1890, that the lands were actually sold, and then at the price of $15,000, to Mr. F. C. Fishburne, as agent for Grafflin. Soon after this sale, Willis demanded an account of Hammond, to the end that he might receive his one-half of the $15,000, after deducting all expenses paid by Hammond. To this demand Hammond refused or neglected to accede, save in the payment of some $750 as alleged commissions. On the 2d May, 1891, Edward Willis, as plaintiff, brought his action in the court of common pleas for Charleston county against Samuel Hammond, as defendant, alleging, substantially, the foregoing facts, and demanding a judgment against defendant for $3,870, with interest from 28th March, 1891; being the one-half of the plaintiff's interest in the profits of the joint adventure and purchase of the land, less the amount already paid him (plaintiff). In the answer of the defendant, he admitted that it was upon the inducement of the plaintiff that he became the purchaser of the Saul tract of land, and its sale at $15,000, but denied any liability to plaintiff therefor, because his agreement of 29th March, 1889, was all the agreement there was between them, and this agreement had failed, leaving a heavy load of responsibility on defendant to avoid loss therefrom. The statute of frauds and perjuries was formally pleaded in bar of any claims of plaintiff. He did set up some counterclaims, but these were afterwards abandoned.
The cause came on to be tried before Judge Aldrich and a jury. After verdict for plaintiff, and entry of judgment thereon, the defendant appealed, on the following seven grounds: (1) Because the presiding judge erred in admitting in evidence the copy of the alleged original letter from plaintiff to defendant dated February 5, 1891, without proper proof of the mailing or delivery of the original. (2) Because the presiding judge erred in refusing to grant a nonsuit, as requested by defendant. (3) Because the presiding judge erred in not holding that as the contract of March 29, 1889, as a matter of law absorbed all previous oral contracts, precluding plaintiff from disputing the terms of said written contract of March 29, 1889, and as plaintiff swore that there was no agreement between the parties after said date, then a nonsuit was proper, and plaintiff had failed legally to maintain his case. (4) Because the presiding judge erred in refusing to grant a nonsuit, whereas he should have done so, on the ground that as the contract of March 29, 1889, as a matter of law, crystallized all previous oral agreements, precluding plaintiff from disputing the terms of said written contract of March 29, 1889, and as plaintiff swore that there was no agreement between the parties after said date, then a nonsuit was proper. (5) Because the presiding judge erred in failing to charge, as requested by the defendant, as follows: "If the tract was not sold by plaintiff for defendant within thirty days from March 29, 1889, then the agreement of March 29, 1889, is a nullity, and defendant is not obligated thereunder." (6) Because the presiding judge erred in failing to charge, as requested by defendant, as follows: "As to any subsequent agreement to that of March 29, 1889, and prior to the sale to Grafflin alleged by plaintiff, if the jury believe that the same consisted of declarations or creations of trusts or confidences of lands, tenements, or hereditaments, or any interest in or concerning lands, tenements, or hereditaments, and the same is not in writing, signed by the defendant, or by some person duly authorized by him so to do, then they must find for the defendant." (7) Because the presiding judge erred in ruling that the question asked Mr. Hammond on cross-examination, to wit: "Didn't you and Major Willis, on one occasion, buy a gold mine together?" was competent, saying: --whereas, he should have held that the testimony of Willis concerning the transaction as to the gold mine was objected to, and the objection sustained; and it was incompetent to further examine Hammond on the same question, under objection duly taken.
Our observations upon the grounds of appeal will be confined within these limits: First, alleged errors of the circuit judge in admission of certain testimony; second, error alleged in refusal to grant the motion for a nonsuit; third, error, as alleged, in refusing certain requests to charge; fourth, error in overruling motion for a new trial.
1. So far as the first division is concerned, it embraces the first and seventh grounds of appeal. When plaintiff was being examined, he testified that he had sent by mail a letter to defendant, demanding an account relating to the share of plaintiff in the $15,000 which had been received of F. C Fishburne, as the agent of Grafflin, as the purchase money of the Saul place, in controversy here. The testimony here (which was not objected to by defendant, and was not denied by him) shows...
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