Dobey v. Watson

81 S.E. 658, 97 S.C. 349, 1914 S.C. LEXIS 181

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

' The appellant desired to build a home and employed the respondent to’ do the work under a written contract. The payments were to- be made on certificates signed by the architects. Under the terms of the contract, 15 per cent, was to' be withheld until the contract was completed. Before the completion of the contract, while some small things remained undone, the plaintiffs wanted to' get some of the 15 per cent, reserved. The architect refused to' issue the certificate, unless the defendant consented. The respondents allege that the defendant did consent, and the architect issued a certificate for $1,750 as part payment. The case was tried before Judge Bowman. At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit. This motion was refused.

There are several exceptions; but that which complains of the refusal to grant a nonsuit is the only one that need be considered, inasmuch as that motion ought to have been granted.

The plaintiff admits that there was a written contract, and by the terms of that contract he was not entitled to the certificate sued on, and alleges a parol contract to* pay' the $1,750, and claims that the certificate must be paid under the parol contract. The defendant denies the parol contract, as set out by the plaintiff, and claims that, even if there was a parol contract, it cannot avail the plaintiff, because a written contract cannot be varied by parol.

There is much confusion in the testimony reported in the case; but there are two things that are clear. The letter' of the architects, transmitting the certificate, contains the following: “Thiscertificateis given with the understanding that you are to let Mrs. Watson have immediate possession of the house.” It is also1 clear and undisputed that the plaintiffs did not* “let Mrs. Watson have immediate possession of the house.” It is true the plaintiffs’ evidence shows that they made offer to let Mrs. Watson store some furniture in the house; but they kept the keys and refused for weeks to give them up!.

There are several questions between the parties, and a final judgment in favor of either plaintiff or defendant, in an action like this, might work serious injustice to the other.

The judgment appealed from is reversed, and the nonsuit ordered.

Chief Justice Gary and Mr. Justice Watts concur. Mr. Justice Hydrick dissents. . Mr. Justice Gage did not sit in this case.