Frick & Co. v. Wilson

15 S.E. 331, 36 S.C. 65, 1892 S.C. LEXIS 76

• Court: Supreme Court of South Carolina
• Decided: April 6, 1892
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. JUSTICE McGowan.

The plaintiff, a corporation under the laws of Pennsylvania, alleged that the defendant had in his possession certain personal property, viz.: one 8 horse power Eclipse stationary engine, and one horizontal fire box boiler, &c., complete, the property of the plaintiff, and wrongfully detained the same to the damage of the plaintiff $300, and claims the delivery of the property, or $000, its value. The defendant answering, averred that the plaintiff company agreed to sell the defendant for $700 an 8 horse power engine, and instead sent him a six horse power engine, and he, the defendant, has paid the value of said 6 horse power engine and owes the plaintiff nothing, &c.

The case came on to be tried before Judge Wallace and a jury. There was a good deal of testimony pro and con, particularly as to the size, capacity, and power of the engine. It seems that the action had been brought in May, 1889, and on October the first thereafter (1889), while the action was pending, there was an effort to compromise the case, “which was to be stayed until the following October (1890). upon the following conditions, viz., that R. R. Wilson shall pay $200 cash, and the balance of the purchase money for the machinery in question on October 1, 1890, and in case of the failure of the defendant to make any one of the aforesaid payments, that the case should proceed as though the agreement had never been made,” &c. It seems that $200 was paid in cash, but for some reason the compromise failed, and the case proceeded. The plaintiff offered to prove this attempt at a compromise; the defendant objected to its competency, and the judge sustained the objection. The jury found for the defendant, and the judge refused a motion for a new trial.

The plaintiff appeals to this court on the following grounds: 1. Because his honor erred in refusing to admit in evidence the in-' strument in writing (October 2, 1889), entered into by the plaintiff and defendant herein. 2. Because his honor erred in charging the jury in effect that if the plaintiff agreed to sell the defendant an 8 horse power engine, and plaintiff delivered to the defendant a 6 horse power engine, the defendant ivas only liable for the price of the property received by him, thereby misleading the jury ; whereas his honor should have added that the defendant was bound by his contract, unless he gave the plaintiff notice within a reasonable time that the property did not come up to contract. 3. Because his honor erred in refusing to set aside the verdict of the jury, in the face of the fact that there was not a particle of evidence to support the same.

1 As to the refusal of the judge to grant a new trial. We have no doubt that he considered that there was enough, or at least some, evidence to sustain the verdict; and that being the case, the matter is beyond our control. This is so well settled-that the citation of authorities is unnecessary.

2 We have read the charge carefully, and we fail to see wherein the judge charged “in effect” as alleged. It seems to us that he charged the law correctly and with singular care; but if as alleged, he omitted to charge properly as to the necessity of the defendant giving notice that the property did not come up to contract, .it was for the plaintiff or his attorney to call the matter to the attention of the judge at the time, and request him so to charge.

3 Then as to the refusal of the judge' to admit in evidence the agreement made in the unsuccessful effort at. a compromise. We do not think the judge erred in excluding the evidence. The agreement, so called, cannot be considered in any sense as a new cause of action, but was purely tentative, providing by its own terms, that if the compromise failed, ‘'the case should proceed, as though the agreement had never been made.” Besides, it is the wise policy of the law, to allow nothing to be done which will tend to prevent compromises in litigation. As Lord Mansfield observed: “It must be permitted to men to buy their peace without prejudice to them, if the offer should not succeed; and such offers are made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, being sued for ¿£100, should offer the plaintiff ¿£20, this is not admissible in evidence, for it is irrelevant to the issue. It neither admits nor ascertains any" debt, and is no more than saying he would give ¿£20 to be rid of the action,” &c. “Propositions for a compromise made by a party to an action, held to have been properly excluded as testimony against him, it being the policy of the law to encourage compromises and not to discourage them by holding the party to his offer.” Chandler v. Geraty, 10 S. C., 304.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.