Sumner v. Bankhead

The opinion of the Court was delivered by Mr. Justice Fraser. This is an action for specific performance, based upon the following contract: “Sales Contract of Real Estate “Ross E. Roach, Broker “Rock Hill, S. C., Aug. 23, 1920. “$19,425, or $105 per acr'e. *80 “Articles of agreement between Ross F. Roach for R. E. Sumner of Rock Hill, S. C., and J. W. Bankhead of Eowryville, S. C.: “Ross F. Roach agrees to sell and J. W. Bankhead agrees to buy the following described property: One 185 acre (more or less, known as the John Roddey Lock view, about 2% miles> east of Rock Hill, four tenant houses, one barn, for the sum of nineteen thousand, four hundred and twenty-five dollars for sound and unincumbered titles for one thousand nine hundred forty-two dollars and fifty cents ($1,942.50) dollars of purchase price is acknowledged paid to bind the obligation until sound and unincumbered titles can be furnished by the owner, by. or before January 2, 1921, when the remainder is to be paid as follows: Cash. “Should any defect appear in the titles that cannot be corrected the amount paid is to be promptly refunded to the buyer by Ross F. Roach, Broker. The buyer is to have the privilege of examining the titles before completing payment. Taxes are to be paid by the owner up to January' 2, 1921. It is understood by all parties interested that Ross F. Roach is to be responsible only for the amount in his hands, but is to use his best efforts to see that the contract is fulfilled by both buyer and seller. The amount paid to bind the obligation is to be forfeited, provided the buyer fails to comply. Said amount of forfeit is to be equally divided between the owner of the property and the broker. “Witnesses: “C. A. Reese, for..R. F. Roach, Broker. “E. S. Kirk, for.J. W. Bankhead, Buyer. “Arnold P. White, for.R. E. Sumner, Broker.” The respondent, the purchaser, refused to comply. The seller at the time of the making of the contract did not own the land, but had himself only a contract to purchase. *81 The case was tried before Judge Ernest Moore, who found that the contract was speculative, and under the case of Schmid v. Whitten, 114 S. C. 245, 103 S. E. 553, refused to require specific performance. Specific performance is addressed to the sound discretion of the Court of equity. Judge Moore found as a matter of fact from the evidence that the con- ■ tract was speculative. In so finding he is abundantly sustained bjr the evidence. The seller did not own the land at the time he made the contract to sell, and before he took title, or the time had arrived at which he could get the title, he. made a contract of resale. The appellant may have changed his mind, or his circumstances may have changed. If the appellant contracted to purchase for his own use, it would have been easy to have explained his change of purpose. He offered no explanation, but, on the contrary, he made a contract of sale in which he and his agent, whose business it was to negotiate sales of land, should divide share and share alike the $1,942.50, the forfeiture provided by the contract sued upon. The contract itself shows its speculative nature. It is true the case of Schmid v Whitten, supra, was decided by a divided Court, but it does not lose its binding authority for that reason. The first ground of exception cannot be sustained. II. The only other question is: Did his Honor err in not giving damages for the breach of the contract ? There was no error here. The contract itself provided the measure of damages, the forfeiture of the initial payment, and that has been paid. The judgment appealed from is affirmed. Mr. Chief Justice Gary (see opinion) and Mr. Justice Watts concur. Mr. Justice Cothran (see opinion) dissents.