Carter & Co. v. Kaufman

45 S.E. 1017, 67 S.C. 456, 1903 S.C. LEXIS 176

• Court: Supreme Court of South Carolina
• Decided: November 27, 1903
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action on a contract entered into between the plaintiffs and the defendants, on the. 18th of July, 1899, whereby the defendants agreed to erect on their own land, a brick storehouse by the 30th September, 1899, and to rent the same, when completed, to the plaintiffs for four years at the price of $35 per month. The plaintiffs, on their part, agreed to take the building at said price, “Provided they do1 business in Walhalla that long.” The contract also contained this provision: “And the said parties of the second part, agree and bind themselves to forfeit to said Carter & Co. $5 per day for each day said building shall remain incompleted, after the 30th day of September, 1899, for ten days, and after that $10 per day until completed.”

The complaint alleges that the plaintiffs have insisted and frequently demanded of the defendants, that they comply with the terms of said contract, but that they have refused to comply with the said agreement, and totally failed to carry out its provisions, whereby the plaintiffs have been damaged in the sum of $3,750.

The defendants answered the complaint, denying generally the allegations thereof, and setting up as a defense, that their failure to comply with the contract was caused by the interference, by the plaintiffs, with the plan of the defendants for borrowing the money which they needed in building the store. The defendants also alleged that “subsequent to the date of the alleged contract, the plaintiffs and the defendants agreed to cancel the said contract, and that the defendants * * * should be released from all liability thereon.”

The jury rendered a verdict in favor of the defendants, and the plaintiffs appealed upon numerous exceptions, that will be set out in the report of the case.

The first exception seems to have been taken under the misapprehension of his Honor’s charge, arising from the fact that it was taken down by a new stenographer, who made certain mistakes that were corrected by the presiding Judge almost immediately after the trial of the case. The words, “by striking out the forfeiture,” in the exception, do not appear in the charge.

So, likewise, the second exception contains the words, “the forfeiture in,” which do not appear in the. charge. These exceptions will, therefore, not be considered.

1 The third exception does not present a question properly before this Court for consideration, as the forfeiture clause is not made an issue by the pleadings, nor is there anything in the charge of his Honor, the presiding Judge, with reference to such question.

2 What has just been said in considering the third exception also disposes of the fourth and fifth exceptions. We may say, however, that if the plaintiffs by their conduct, induced the defendants not to erect the building, they would be estopped from claiming damages arising from the failure to build the house, even if there was no new consideration. A contrary doctrine would enable the plaintiffs to take advantage of their own wrong.

3 The sixth exception does not specify in what particulars his Honor’s charge was erroneous, and is, therefore, too general for consideration.

The seventh exception is disposed of by what has already been said, and the eighth exception is in like plight.

4 The ninth exception cannot be sustained, for the reason that testimony tending to show an agreement between the parties to cancel the original contract was introduced without objection, and such testimony was responsive to the allegations of the answer to the complaint.

The tenth exception must be overruled, as the grounds upon which it is urged, that the testimony was inadmissible, were not interposed by way of objection when the testimony was offered.

5 The case of Worrell v. McClinaghan, 5 Strob., 115, shows conclusively that the eleventh exception must be sustained. In that case there was a stipulation in the contract for building a house, that it should be completed by a certain day, and in default, there was to be a deduction of $100 for every month which intervened between that day and the completion of the building. The Court held that the forfeiture partook of the character of liquidated damages, and not that of a penalty, and that the jury should have been instructed to that effect, as matter of law. In the case under consideration, it unquestionably appears upon the face of the contract that the damages therein mentioned are liquidated, and his Honor, the Circuit Judge, should have so ruled, as matter of law. But whether such damages are recoverable, must, of course, depend upon the facts of the case, to be determined by the jury under proper instructions by the Court.

6 The additional exceptions, numbered 12, 13, 14 and 15, cannot be sustained for the reason that his Honor’s charge therein mentioned, was responsive to the.issue made by the pleadings, and the record discloses the fact that there was certainly some testimony to establish the same.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed and the case remanded to that Court for a new trial.