Marshall v. Columbia & Eau Claire Electric Street Ry. Co.

53 S.E. 417, 73 S.C. 241, 1906 S.C. LEXIS 174

• Court: Supreme Court of South Carolina
• Decided: February 17, 1906
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

In this action the plaintiff invokes the equitable aid of the Court fi> reform' the deed executed by the defendant, Columbia and Eau Claire Electric Street Railway Co., whereby it conveyed to1 the plaintiff the two lots described in the complaint; also' for an injunction to prevent the company from selling or in any manner interfering with the land described as the “Circle,” in the plat or map' to which reference is. made in said deed, so as ho affect her rights. The vital question raised by the pleadings is whether there was an agreement between the plaintiff and said defendant, that the land designated on the plat or map as the “Circle,” and mentioned in the deed as one of the boundaries of her lots, should remain open as a park or for some other public purpose. The “Circle” contains about four acres of land.

The decree' of his Honor, the Circuit Judge, finds the facts substantially as alleged in the complaint. The defendants denied the material allegations of the complaint and set up the plea of the statute of frauds as to the agreement therein alleged. The decree and the exceptions will be incorporated in the report of the case.

1 First exception: The record dora not disclose the fact that the Circuit Judge was requested to' rule upon the objections to the testimony mentioned in said exception, nor that a motion was made to- strike out the testimony. But waiving this objection, the exception cannot be sustained. The only objections to the testimony which can be considered by this Court, are those which were interposed when it was offered before the master, and the only grounds upon which it was then urged, that it was inadmissible, were that it was not with reference to the issue and was hearsay. The objection that the testimony “was not with reference to the issue” is untenable, as it related to the question whether there was an agreement that the “Circle” should be kept open, which was the main issue in the case.

The objection to the admissibility of the testimony on the ground that it was hearsay, is likewise untenable, as the testimony of- the witness immediately preceding that set out in the exception, shows that the conversation took place between Mr. Hyatt and the plaintiff or her representatives.

2 Second exception: The first ground to the objection to the admissibility of the testimony when it was offered before the master was “that it is parol evidence, and the contract was afterwards reduced to writing.” The testimony does not contradict or vary the terms of the deed, but was explanatory of the purposes for which the land designated on the map as the “Circle” was intended, and tended to- show the defendant’s construction of the contract. Williamson v. Association, 54 S. C., 582, 32 S. E., 765. The testimony was likewise admissible for the purpose of showing the negotiations leading up- to the execution of the deed. Bruce v. Moon, 57 S. C., 60, 35 S. E., 415. It was also- competent as tending to show the actual consideration for the deed. Whitman v. Corley, 72 S. C., 410; Barle v. Owings, 72 S. C., 362; Brice v. Miller, 35 S. C., 537, 15 S. E., 272; Egan v. Bissell, 53 S. C., 547, 31 S. E., 661.

3 The other objection to- the testimony when it was offered before the master was-, “that he (Hyatt) had no- authority to make representations.” Mr. Muller, a witness for the defendants, whoi drew the deed, and who> was a stockholder in said company, testified' that Mr. Hyatt “was the president and leading spirit of the company. Was referred to very much by all the stockholders in the management of the business of the company, and more particularly in the sale of lots.” His representations in the sale of the lots were, therefore, binding upon the company. Williamson v. Association, 54 S. C., 582, 32 S. E., 765; Association v. Williamson, 23 Sup. Ct., 527.

4 The other exceptions assign error on the part of the Circuit Judge in his findings of fact. Even if the map was not accepted or adopted by the defendant company, and even if the “Circle” was not dedicated SO' as to' confer rights that could be enforced by the public, nevertheless, if the company represented to the plaintiff that the “Circle” would be kept open, and thereby induced the plaintiff to purchase her lots, such representations would be binding upon the defendant. This Court is satisfied with the findings of the Circuit Judge upon this question.

The foregoing conclusions practically dispose of ajl questions presented by the exceptions.

It is the judgment of this Court, that the judgment of the Circuit Court be áffirmed.