Sloan & Son. v. Courtenay

32 S.E. 431, 54 S.C. 314, 1899 S.C. LEXIS 41

• Court: Supreme Court of South Carolina
• Decided: March 7, 1899
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The plaintiffs bring this action to- recover from the defendants a specified amount claiming to be due under a contract, a part of which is in writing, supplemented by certain parol testimony set out in the “Case.” The written instrument relied on as a part of said contract reads as follows: “Chester, S. G, 5th July, 1892. Re. Mary F. McCrady vs. Allen Jones et al. With the consent and at the request of all the counsel in this cause, I, the undersigned, agree to bid off the lands as follows : (1) The water power tract (544 acres), at $13,578. (2) The balance of the lands, less the house tract of 562 acres (to be sold together), at $12,922. These two bids to- be assigned under the direction of F. J. Pelzer, W-, A. Courtenay, J. R. London, T. C. Robertson and Allen Jones, the same being made for their benefit, but subject to the right of J. E. B. Sloan & Son, that their claim be made good, and also, that of Jones and Robertson, assigned to- the said Sloan & Son this day. (3) The house tract (of 562 acres), No. 14 on plat, at $3,'500; this bid to be assigned to- Mrs. Plenrietta C. Davie, the same being made for her benefit. It being understood and agreed by and between all parties, that if any of said lands should be run up above the said figures, the surplus to go- to the party- or parties for whose benefit the bids are made. (Signed) C. E. Spencer. We consent. (Signed) Edward McCrady, jr., T. W. Bacot, attorney Mrs. Henrietta C. Davie, C. E. Spencer, W. B. Wilson, jr., William A. Courtenay, and for F. J. Pelzer, Jno. R. London, T. C. Robertson, Allen Jones.”

The parol evidence relied on to supplement the agreement evidenced by the written instrument above copied was as to what occurred at a conference of the parties, which will hereinafter be more particularly referred to, which was held on the day of sale, just before the sale, culminating in the signing of the said written instrument. The land was sold on the 5th of July, 1892, and bid off by Mr. Spencer in accordance with the terms of the written instrument above set forth. Matters remained in this condition until the 3d of November, 1892, when'Mr. Spencer, as attorney of Sloan & Son, received from the clerk of Court, who had made the sale, one-fifth of the net proceeds of the sale of the water power tract, and applied the same to the two' claims mentioned in the written instrument aforesaid, held by him as attorney for Sloan & Son, leaving a balance due on said claims amounting, at that date, to- $1,305.35. Subsequently, and before the commencement of the action, the defendants, London, Robertson and Jones, each paid to Spencer one-fifth of said balance, leaving a balance of $522.14, and this action was brought to recover that balance, with interest thereon from 3d of November, 1892. But subsequently to the commencement of this action, Mr. Pelzer paid up one-half of said balance, and judgment was, in fact, claimed only for the other half, to wit: the sum of $261.97, with interest from the 3d of November, 1892. On the 28th of November, 1892, Mr. Spencer wrote appellant, stating that he had received from the clerk of the Court one-fifth of the net proceeds of the sale of the water power tract, which left a deficiency due on the claims of Sloan & Son of $1,305.35, and asking him for payment of one-fifth of said deficiency, and also one-fifth for Pelzer. Some correspondence ensued between them, in which appellant denied any liability for said sum, but expressing a willingness to pay one-fifth of the deficiency mentioned in the conference on the day of sale — some one or two hundred dollars — and enclosing his check to cover both his and Mr. Pelzer’s portion of such deficiency — which, however, Mr. Spencer declined to use, as it was sent with an accompanying denial of any further liability. The position taken by appellant is fully and clearly stated in his answer; and as that answer will be incorporated in the report of this case, we need not undertake to state it here, further than to say that the appellant contends that in the verbal agreement, which he supposed was set out in the written instrument, which he signed without reading it, the agreement was that the defendants would make up any deficiency in the larger claim held by Sloan & Son (the only one of which he had heard), if one-fifth of the net proceeds of the sale would not be sufficient to- pay the claim, provided such deficiency would not amount to more than $100, and that he never did agree to pay anything on the claim of Jones and Robertson, which was assigned to plaintiffs on the day of sale, as he knew nothing about it, and had never heard of it until after this controversy arose. Subsequently, Mr. Spencer, by the written directions of the defendants, assigned his bid to the appellant, to whom the clerk made titles. This Mr. Spencer says he did because he had heard from plaintiffs that they were satisfied that he should do so, which probably refers to a telegram sent by Sloan & Son to Spencer, which will be hereinafter more particularly referred to. The appellant persisting in his refusal to comply with the contract, as alleged by plaintiffs, upon the ground that he had never entered into any such contract, this action was commenced on the 30th of September, 1897, and came on for trial before his Honor, Judge Klugh, and a jury at spring term, 1898. After the pleadings were read, counsel for appellant moved to- transfer the case from Calendar 1 to Calendar 2, upon the ground that the answer of appellant set up an equitable defense, properly triable by the Court and not by the jury. This motion was refused, to which exceptions were duly taken. The plaintiffs then proceeded to offer testimony in support of their claim, and at the close of their testimony, counsel for defendants moved for a non-suit upon the grounds “(1) That the written instrument sued upon imposes no obligation upon the purchasers to make good the claims of Sloan & Son. (2) That there is' no testimony whatever showing any consideration whatever of the purchasers for assuming such obligation. (3) That there is no sufficient evidence afforded of the plaintiffs case as made, to warrant the issues being referred to the jury.” The motion for a nonsuit was refused, and the defendant proceeded to offer his testimony, and at the close of all the testimony the Circuit Judge charged the jury as set out in the “Case,” who returned a verdict in the following form: “We find for the plaintiffs against William A. Courtenay, $360.57,” being the said sum of $261.07, with interest from the 3d of November, 1892, upon which verdict judgment was entered against Mr. Courtenay alone, and from this judgment he appeals upon the thirty-two exceptions set out in the record. For a full understanding of the case, as made by this appeal, the Reporter will set out in his report of the case, a copy of Mr. Courtenay’s answer, a copy of the Judge’s charge and a copy of the exceptions.

The exceptions are numerous, some of them divided into several subdivisions, and instead of considering them seriatim, we propose to consider the several questions which we understand these exceptions are intended to raise. These questions may be stated in a general way as follows: ist. Whether there was error in holding that the case was properly triable by a jury. 2d. Whether there was error in any of the rulings as to the admissibility of testimony. 3d. Whether there was error in refusing the motion for nonsuit. 4th. Whether there was any error in the charge to the jury or in refusal to charge certain requests. 5th. Whether there was error in entering judgment against Courtenay alone.

Before proceeding to consider these questions, it may be well to give some account of the transactions out of which this controversy arose. While there is a direct conflict in the testimony as to some of the facts, there are others about which there seems to be no dispute. The lands referred to in the written instrument, set out in this opinion, were ordered to be sold at public outcry by the clerk of the Court of Common Pleas for Chester County — see McCrady v. Jones, 36 S. C., 167 — the water power tract to be sold separately, and the remainder of said land to be sold in such parcels “as may be most conducive to the interests of the parties entitled.” Accordingly, the clerk had the lands, outside of the water power tract, and the home tract, divided into' a number of smaller tracts. Before the day of sale a syndicate, composed of the five persons named as defendants in this case, was formed for the purpose of buying the property at a price not exceeding the sum of $30,000, with a view to developing the water power. On the day of sale, 5th of July, 1892, all of the members of this syndicate, excepting Mr. Pelzer, who was represented by Mr. Courtenay, together with Mr. Spencer, who represented the plaintiffs, as creditors of one of the parties interested in the lands, Mr. Wilson, who represented certain other creditors, Mr. Bacot, who represented Mrs. Henrietta C. Davie, and Mr. McCrady, who, as we understand it, represented his wife’s interests in the land, met at Chester C. H., where the sale was to be made, and had a conference as to how the sale should be conducted. At that conference it appeared that Mrs. Henrietta C. Davie desired to purchase the home tract, and that the syndicate above mentioned wanted the water power tract and lands adjoining other than the home tract. But as the syndicate was only willing to buy the whole property at a price not exceeding $30,000, and as Mrs. Davie wanted to buy the home tract, and as Mr. Spencer was desirous that the water power tract should bring an amount sufficient to pay the claims of plaintiffs which he represented, and which, as he claimed, was secured by a lien upon a one-fifth interest in that tract, it became necessary to determine what amounts should be bid for the water power tract, the home tract and the other lands — the aggregate of these bids being limited to the sum of $30,000. After very considerable conference, the amounts of these several bids were agreed upon as stated in the written instrument; but as Mr. Spencer .did not then know the precise amount of the claim of the plaintiffs, he insisted that provision should be made to secure any deficiency that would arise in case the one-fifth of the proceeds of the sale of the water power tract should prove insufficient to satisfy the plaintiffs’ claim. Just here there is a direct conflict of testimony — the plaintiffs insisting that the arrangement was that if any such deficiency should arise in the claim -of the plaintiffs, including the claim of Jones and Robertson, which had that morning been assigned to plaintiffs, the defendants would make the same good, while the appellant insists that his understanding was that the defendants should only make good the deficiency to the extent of $100 — the amount which Mr. Spencer estimated that such deficiency would be. These terms being thus a.greed upon as was supposed, Mr. Spencer undertook to embody the same in writing. The appellant being called off, left the room where the conference took place, the written instrument above copied was prepared in his absence, and upon his return, being in a hurry to catch the train, he, without reading the paper, signed the same for himself and Mr. Pelzer.

1 We will next proceed to consider the several questions presented by the exceptions, as stated above. First, was there any error on the part of the Circuit Judge in holding that this was a case properly triable by a jury. The appellant contends that, in his answer, he sets up an equitable defense, which should be passed upon by the Court and not by a jury. We do not think that the answer sets up an equitable defense. There is no claim that the written instrument relied upon by plaintiffs should be reformed, nor is there any claim that the contract as set out by plaintiffs should be rescinded. It is nothing but a simple dénial that the contract, as set up by plaintiffs, is the contract into which appellant entered; and this raises a legal and not an equitable issue. The exceptions raising the first question are overruled.

2 The second question must be considered in subdivisions, as it relates to several rulings by the Circuit Judge, (a) It appears that Mr. Courtenay was put upon the stand as a witness by plaintiffs, and during his examination he was asked by plaintiffs, with the avowed object of testing the accuracy of his memory, this question: “Didn’t you sign a bond in this McCrady case, and say that you had never signed such a bond?” Objection was interposed by appellant’s counsel, “on the ground of irrelevancy,” and the objection was overruled. In all questions as to the irrelevancy of testimony, large discretion must necessarily be vested in the Circuit Judge from the very nature of the case, and it must be a very clear case of error, harmful to the party interposing the objection, which would justify interference by this Court. In this case, it is very obvious from the testimony that the differences between these parties arose entirely from misunderstanding and difference in recollection, and not from any improper motives — in other words, there was an honest difference between these parties, and hence it does not seem to us to have been irrelevant to test the memory of each. At all events, we see ño error of law in overruling the objection. Exception 5 must be overruled. Exception 6, relating to the same' matter, cannot be sustained. While it is true that Mr. Courtenay was put upon the stand as plaintiff’s witness, that did not deprive either party of the right to ask him any question as to any material issue in the case, and it is unquestionably true that Mr. Courtenay had, as he had a right to do, testified fully as to what occurred in the conference.

3 4 (b) Exceptions 7, 8, 9 and 10, seem to relate to certain objections interposed by appellant during the examination of the witness, Tucker. This witness was examined for the purpose of showing that some time in October, 1892, a telegram was sent by Sloan & Son to their attorney, Mr. Spencer, at the instance of appellant. This was objected to upon the ground that the contract sued upon having been made on the 5th of July, 1892, what occurred in October following could throw no light upon such contract. The Court ruled that the telegram referred to was not competent evidence. The witness was then asked whether Mr. Courtenay instructed him to send the telegram over the signature of Sloan & Son to Mr. Spencer, to which the witness replied without objection, “Yes, sir.” The witness was then asked what Mr. Courtenay told him to put in the telegram. After some colloquy between the Court and counsel, the Court ruled that if the witness could state what Mr. Courtenay directed him to put in the telegram, he might state that as a declaration made by Courtenay in reference to the matter in issue; and that the fact that such declaration was made after the making of the alleged contract, would not render such declaration incompetent. The witness then proceeded to state that, while it is very difficult after a lapse of six years to remember every word of a conversation, he clearly recollected that Capt. Courtenay came into the office on the 24th day of October, 1892, adding that he refreshed his memory “from the evidence, documentary evidence;” whereupon counsel for appellant objected to his refreshing his memory, saying that he understood the ruling of the Court to be that the witness could state what he remembered, to which the Court assented; and the witness was directed to proceed to state what he remembered, and testified that appellant requested him to send the telegram, which was to the effect that the paper that Mr. Spencer then had, bound himself and others, who signed it, to make good the account of J. B. E. Sloan & Son. Two points in relation to these objections to the testimony of -Mr. Tucker seem to be made by exceptions 7, 8 and 9, one of which is that the Circuit Judge erred in ruling that the witness might refresh his recollection by referring to the copy of the telegram referred to, but we do not understand that he made any such ruling. On the contrary, he ruled that the telegram itself was incompetent, but that the witness might state, from his own memory, if he could, what were the contents of the telegram which he says he sent to Spencer, over the signature of Sloan & Son, at the request of Courtenay. But if such had been the ruling, we are not prepared to say there would have been any error in it. The witness having testified that he had sent a telegram to Spencer, at the request of Courtenay, to which he had signed the name of J. B. E. Sloan & Son by the authority of one of the members of that firm, when asked what were the terms of the telegram which Mr. Co.urtenay had instructed him to. send, we see no reason why he should not be permitted to refresh his memory as to the words used in the telegram, after he had testified that he had sent it in accordance with the direction of Mr. Courtenay. The other point of objection is that this matter, which occurred months after the contract sued upon was entered into, was incompetent to show what were the terms of such contract. It seems to us that the testimony was competent in more than one respect. It was competent, as the Circuit Judge held, as an admission or declaration by appellant as to the terms of the contract. And it was also admissible on the ground of estoppel. There is no doubt of the fact that there was a controversy between Spencer and Courtenay as to the terms of the contract — the former contending that he was not bound to assign the bids which he had made until the claim of Sloan & Son, including the claim of Jones and Robertson, which had been assigned to them on the morning of the sale, was made good, while the latter contended that the said claim of Jones and Robertson was not contemplated in or provided for in the contract. If, therefore, Spencer assigned the bids upon any assurance that the claim of Sloan & Son, including that assigned to them by Jones and Robertson, would be made good by the defendants, then they would be estopped from disputing the claim made by Spencer; and surely any testimony tending to show that such assurance had been given by Mr. Courtenay — the only one of the defendants who semed to be disputing Mr. Spencer’s position, would be competent upon the ground of estoppel, if not competent upon any other ground. Exception io, included in this subdivision, imputing error in allowing the witness, Tucker, to testify that the claim of Jones and Robertson was included in the account referred to in the telegram, cannot be sustained. In the first place, that witness did not so testify. This witness was examined three times — before J no. C. Mehrtens, notary public, on the 9th of April, 1898, which we suppose was before the trial, at the trial, and again in reply. On the last occasion no reference whatever was made to the claim of Jones and Robertson; when he was examined in chief as a witness for-plaintiffs, he simply stated: “My connection with the office (referring to the office of Sloan & Son), had brought to my attention that Jones and Robertson were indebted to J. B. E. Sloan & Son, and I knew a settlement was attempted to be made from the sale of the Landsford property, but I was not familiar with the details;” and to this testimony no objection whatever was interposed. When examined before Mr. Mehrtens, as notary public, all that he said in reference to the claim of Jones and Robertson was substantially the same as, that quoted from his testimony in chief at the trial; and this was said in response to appellant’s first cross-interrogatory, and said without objection. - It is obvious, therefore, that exception io must be overruled.

(c)Exceptions n, 12 and 13 relate to objections to the testimony of Mr. Spencer as to the time when, and the reason why, he withdrew his refusal to assign the bids which he had made for the defendants. The testimony shows that Spencer had refused to assign these bids because the appellant had taken the position that, according to his understanding of the agreement, he was under no obligation to pay anything more than he had already paid; but when he was informed by his clients, through the telegram above referred to, that they were satisfied, the ground of his objection was removed and he assigned the bids. How this testimony can' be regarded as incompetent we are at a loss to perceive. These exceptions are overruled.

5 (d)Exceptions 19, 20, 21 and 22 are disposed of by what has already been said, and exception 23 is too general to require any consideration.

(e) Exception 25, imputing error in excluding the letter of Pelzer to Courtenay, of 9th October, 1897, cannot be sustained. We do not find any letter of that date mentioned in the “Case,” except that the contents of such a letter was offered as a part of a conversation brought out by plaintiffs, and ruled inadmissible, which was clearly right, as it was not a part of any evidence offered by plaintiffs; of course, when it was first offered to prove the contents of such letter, the letter itself was the best evidence of what it contained; and besides, its contents were brought out without objection, as Mr. Courtenay was permitted to state a conversation he had with Mr. Pelzer, giving his reasons for paying up.

6 (f) Exception 26, imputing error in allowing the witnesses, Tucker and Sloan, to be examined in reply for the purpose Of reiterating what they had said in their testimony in chief, cannot be sustained. These witnesses having testified as to what occurred when the telegram above referred to was sent, were contradicted by Mr. Courtenay, when he was put on the stand as a witness for the defense, in several particulars — notably as to his having requested the telegram to be sent — and these witnesses, Tucker and Sloan, were examined in reply, and asked whether, after hearing Courtenay’s testimony, they still adhered to their previous testimony, and they both said they did. In this we see no error of law. The conduct of a trial must necessarily, to a large extent, be left to the Circuit Judge, and the course which he takes will not be interfered with by this Court, unless some error of law is committed. It may be that a witness for the plaintiff has made some statement, which, after hearing it contradicted by a witness for the defense, he would desire to correct or explain, and so, on the contrary, the witness, after hearing his statement contradicted, might desire to reiterate his statement notwithstanding such contradiction, and we see no error of law in permitting him to do so.

7 8 The third general question is as to whether there was error in refusing the motion for a nonsuit. Exceptions 14-21, inclusive, and 23 and 24, seem to relate to this matter. We do not propose to consider these exceptions in detail, for the reason that some of them simply assail the reasons given by the Circuit Judge for refusing the motion, and even if some or all of his reasons ' are not well founded, that would not affect the questions, as the question for this Court to determine is whether the ruling of the Circuit Judge is erroneous, and not whether the reasons which he gave for his ruling are sound. Besides, Rule 18 of the Circuit Court requires that a motion for a nonsuit must be reduced to writing, “stating the grounds of the motion,’’ and these grounds are what the Circuit Court is called upon to consider, and that is what this Court is required to review. That rule was complied with in this case, and the motion for a nonsuit was based upon three grounds which are, herein-above, set out in haec verba. The first of these grounds is that “the written instrument sued upon” imposes no obligation upon the defendants to make good the claims of plaintiffs. But we do not understand that the action is based alone upon the written instrument, but upon that instrument supplemented by the parol evidence as to what passed between the parties at the conference which preceded the signing of that instrument. While, therefore, it is true that the written instrument does not, in terms, show who were to make good the claims held by plaintiffs, and in addition to this does not show the amount of such claims, yet the plaintiffs rely upon the parol evidence above referred to, for the purpose of supplying these additional terms of the contract sued upon, which do not appear in the written instrument. The question, therefore, as to what would be the proper construction of the written instrument if it stood alone, is not before us, as parol evidence was received, without objection, for the purpose of supplementing the terms of the written instrument. We do not think that the first ground upon which the motion for a nonsuit was based is tenable, as there was clearly some testimony tending to show who were the parties who agreed to make good the claims of plaintiffs, and the amount necessary for that purpose. Whether such testimony was sufficient to establish these facts, was a question solely for the jury, and their determination as to that matter this Court has no jurisdiction to review.

9 The second ground is that there was no evidence whatever showing any consideration for the defendants assuming any obligation to make good the claims of the plaintiffs. We cannot adopt that view. There certainly was testimony tending to show that the defendants desired to purchase the property at a price not exceeding the sum of $30,000; that the main object of the purchase was to obtain the water power tract and such adjoining lands as might be necessary or desirable, at least, for the purpose of developing the water power; that Mr. Spencer, as the attorney of plaintiffs, held claims, secured by a lien upon a one-fifth interest in the water power tract, which under the order of sale was required to be sold separately; that Spencer insisted that the water power tract should bring an amount sufficient to pay the claims which he held; that Mrs. Henrietta C. Davie desired to buy the home tract; that in order to attain the ends desired by the several parties, it was necessary to fix upon the amounts to be bid for the several pieces of property, in order that they should not exceed in the whole the 'amount which defendants were willing to give for the whole property; that accordingly the amounts to be bid were fixed upon as stated in the written instrument; but that Mr. Spencer, not knowing precisely the amount necessary to satisfy the claims which he represented, was unwilling to agree to the amount to be bid for the water power tract, unless the defendants would agree to make good any deficiency in the payment of the claims held by him, and that such agreement was made. If these facts were established (and that was a question exclusively for the jury), then there was a sufficient consideration to support the contract sued upon. "We do not think, therefore, that the motion for a nonsuit could be sustained on the second ground. The third ground is disposed of by what has already been said. The exceptions, therefore, to the refusal of the motion for nonsuit are overruled.

10 The fourth general question, as to whether there was error in the charge to the jury, or in the refusal to change certain requests, will next be considered. The exceptions as to this matter are 27-30, both inclusive. The first of these exceptions is subdivided into quite a number of exceptions, which will not be considered in detail, as some of them are, practically, repetitions of others; some are mere statements of extracts made from the charge, without pointing to any specific error of law therein, and others are taken under a misconception of the charge. Indeed, we have found it very difficult to ascertain what are the specific errors of law imputed to the charge. We are, therefore, compelled to confine our attention to what we suppose to be the points of law wherein it is charged that the Circuit Judge has erred. The first of these is that the Circuit Judge should have construed the written instrument and not left its construction to the jury. While there is no doubt that the rule of law is that an instrument in writing must be construed by the Judge and not by the jury, we do not see that this rule has been violated in this case. The Circuit Judge did construe the written instrument, and instructed the jury that, in and of itself, it was not sufficient to show the contract sued upon. But inasmuch as the written instrument did not even purport to contain all of the terms of the contract, parol evidence was relied upon to show what were the other terms of the contract not specified in the written instrument, and from that evidence the jury were instructed to determine what were these additional terms of the contract.

11 The next point made, as we understand it, is that the Judge erred in instructing the jury that they were to determine from the evidence whether the defendants bound themselves jointly or severally, as it was called, to pay any deficiency that might- appear — that is, whether each of the defendants agreed to pay the whole of such deficiency or only one-fifth part thereof. It being manifest that there was nothing in the written instrument to indicate what was the measure of the liability of each, that matter could only be ascertained from the parol evidence, which was, of course, for the jury. The next point made is that there was error in charging plaintiffs’ 5 th request, which is set out in the charge, as well as in the appellant’s exceptions, which was to the effect that where two or more persons, jointly, as parties of the one part, enter into a contract with another, a mere mistake of only one of the parties contracting jointly, would not relieve any of the parties, on his part, from the performance of the contract as against the other contracting party. * In this there was no error, for the reason that the essential element of mutuality would be wanting.

12 Our next inquiry is whether there was any error in charging plaintiffs’ 6th request, which is set out in the charge as well as the exceptions. We see no error here, as the proposition there charged is in accordance with the well settled rule that the terms of a written contract cannot be varied, explained or contradicted by parol evidence unless there is a direct proceeding for the reformation or rescission of the contract; and this is not such a proceeding.

13 The next point made is that there was error in charging plaintiffs’ ist and yth requests. The exception in which this point is made is not in such form as would require this Court to consider it, inasmuch as it does- not appear in the exception what those requests were; but as they are set out in the Judge’s charge, we will waive the objection as to want of form, and consider these requests. The ist request simply sets forth one of the well settled principles of the law of estoppel, and there was no error in so charging. If Mr. Spencer were induced to- change his position by assigning the bid, upon the representation made by Mr. Courtenay that both of the claims mentioned in the written instrument would be made good, appellant would, of course, be estopped from afterwards disputing such representation. Of course, whether such a representation was made, and whether Spencer acted upon it, were questions of fact exclusively for the jury, which we have no jurisdiction to consider, and, therefore, are not at liberty to express any opinion about. The 7th request rests upon a similar principle. If the appellant negligently or inadvertently signed the written instrument, without reading it, and plaintiffs were thereby induced to release their security for the claim which they held against Jones and Robertson, and accepted, in lieu thereof, the written instrument in the terms in which it read, it is clear, upon the same principle of estoppel, that the appellant could not afterwards avail himself of a mistake as to what were the terms of the written instrument, caused by his own neglect to read the paper.

14 The 28th exception, complaining of error in refusing to charge appellant’s 7th and 8th requests, cannot be considered under the well settled rule of this Court. The “Case” does not show that these requests, as set out in this exception, ever were submitted to the Circuit Judge. See Lites v. Addison, 27 S. C., at pages 229-30, where the reason for the rule is thus stated: “While the ‘Case’ as submitted by the appellant is open to amendment, as well by counsel for respondent as by the Circuit Judge when it is submitted to him for settlement, the exceptions of appellant cannot be so amended. Hence, when facts are incorrectly stated or requests to charge are not properly represented in the ‘Case,’ such errors may be corrected by amendment; but when they are found only in the exceptions, they are beyond the reach of amendments, and, therefore, cannot be regarded by this. Court.” See, to same effect, Stackhouse v. Wheeler, 17 S. C., at p. 105; State v. Coleman, 17 S. C., 473; McPherson v. McPherson, 21 S. C., 26; State v. Jenkins, 21 S. C., at p. 595. While, therefore, we do not mean to intimate that the requests to charge upon which exception 28 is based are incorrectly represented, yet this well settled rule must be applied, especially where, as in this case, its protection has been invoked. We may add, however, ex gratia, that we do not think this exception could be sustained even if properly before us. The 29th exception is practically disposed of by what has already been said.

Exceptions 30 and 31, relating to the question whether, in this action, a verdict against appellant alone could be sustained, have likewise been disposed of by what has been said as to the question'of whether the defendants contracted each ¿or the whole amount of the deficiency, or only for his one-fifth part thereof. The determination of that question depended upon the view which the jury might take of the parol evidence, as the written instrument threw no light upon that question; as to which the jury were properly instructed.

15 It only remains to consider exception 32, which is divided into three subdivisions: the first, based upon the proposition that the appellant set up an equitable defense, is disposed of by what has already been said in considering the first general question in the case; the second is but a repetition of the proposition that a judgment could not be entered against appellant alone, has already been disposed of; the third is that the other four defendants having been released, appellant is also released. If the other four defendants were never liable for appellant’s one-fifth part of the deficiency, as the jury seem to have found, then it could not be said that the other four defendants were released from a liability which they never incurred.

Some question seems to have been made in the Court below as to the statute of frauds, and appellant, by his 10th request, desired a charge upon that subject, which was complied with, and, as we understand it, such charge was satisfactory to appellant. At all events, we do not find in the exceptions any complaint made as to that part of the Judge’s charge, and hence there is nothing for us to decide as to that matter.

16 A point is made in the argument that the appellant was entitled to judgment, non obstante veredicto. But no such motion was made before the Circuit Judge, so far as the “Case” shows; and there is no exception raising any such point. It is not, therefore, properly before us. We may add, however, that even if the point was properly before us, it could not be sustained under the case of Bowdre v. Hampton, 6 Rich., 208, as quoted in the very recent case of Barnes v. Rodgers, ante, 115.

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