R. E. Allen, Bro. & Co. v. Burnett

The opinion of the Court was delivered by Mr. Justice Watts. This cause was tried before Judge Ernest Gary and a jury on November 22, 1911. The plaintiff brought action to recover damages for breach of contract for sale of 1,000 barrels of flour for future delivery to the defendant at the price of $6.35 per barrel on March 31, 1910, on which date the defendant’s right to order out the flour expired. The plaintiff alleged the price of flour went down and he was damaged in the sum of $750 by reason of the defendant’s failure to order the flour out. The complaint alleged that it was the bona fide intention of the parties that the flour should be actually delivered and received in kind. The answer admitted that the defendant was doing business under the name of Spartan Grain and Mill Company, denied all the other allegations of the complaint, and set up as defense the statute of frauds. Verdict was rendered for plaintiff, and defendant appeals on exceptions set out in the record. These exceptions raise practically three questions: 1 1. The sufficiency of the written memorandum to take the case out of the statute of frauds. The record shows that when attorneys for plaintiff offered in evidence the memorandum referred to and testified to as made by R. E. Allen, Jr., defendant’s attorneys simply objected to the introduction of the memorandum and stated no grounds of objection. In addition to this, the defendant in his evidence admits purchasing the flour and the letters of defendant to plaintiff, three in number, admitted by the evidence of defendant, establishes the fact that the defendant purchased the flour. Defendant while testifying admitted that he had purchased the flour and his reason for'not taking it was that he was overstocked. In the case of Louisville Company v. Lorick & Lowrance, 29 S. C. 533, 8 S. E. *99 8, it was decided that there was a memorandum made by the salesman and afterwards there was a letter written by the defendant countermanding the same. That the two papers together constituted a sufficient writing to take the case out of the statute of frauds. Here we have the memorandum made out to the Spartan Grain and Flour Company instead of the Spartan Grain and Mill Company, but we have the admission of the defendant in his testimony that he was the Spartan Grain and Mill Company, and that he purchased the flour. We have in evidence letters from the defendant company referring to and admitting the contract to purchase the flour. Also, letters from the plaintiff to defendant calling on defendant to order the flour out and enclosing a bill for the flour. This is a sufficient compliance to take it out of the statute of frauds. This exception is overruled. 2 Exceptions 2 and 3 question the rulings of the Court on the admissibility of the evidence over defendant’s objection. The letters referred to in the exceptions are from the defendant to the plaintiff. They were competent as far as they went to show an admission on the part of the defendant that he had purchased the flour and admitted the contract and wished a cancellation of it. Any admission in the letters as to whether the parties had made the contract in dispute was competent to go to the jury. They were admitted for this purpose and were competent to that extent. They were not admitted for the purpose of showing an offer of compromise had been made, but to establish the fact that the contract of sale had been entered into. The issue here was, was there a contract entered into between the parties and any admission on the part of defendant, either orally or in writing, to establish -that fact or elucidate it was competent to go to the jury. In considering the question whether the evidence offered is an offer of compromise or the admission of a fact the Court says, in Hartford Bridge Company v. Granger, 4 *100 Conn., 142, “the law on this subject has often been misconceived ; and it is time that it would be firmly established. It is never the intendment of the law to shut out the truth, but to repel any inference which may arise from- the proposition made, not with design to admit the existence of a fact, but merely to buy one’s peace. If an admission, however, is made because it is a fact, the evidence to prove it is competent, whatever motive can have prompted the declaration.” In the same case the Court says that the question to be considered is, what was the view and intention of the party making the admission? If the intention was to admit a fact, then the testimony is competent. In Colburn v. Groton, 66 N. H. 151, we find: “The preliminary question always is, not merely whether an admission of a fact was made during a settlement or negotiation, but whether a statement or act was intended to be an admission. It is a question, not of time or circumstance, but of intention — an offer of payment, whether accepted or rejected, is evidence when the party making it understood it to be, and made it as an admission of his liability.” “Any declaration or admission made by a party to a suit against his or her interest, either in or out of Court, can be established by any one who heard the declaration or admission.” McGahan v. Crawford, 47 S. C. 578, 25 S. E. 123. “The voluntary declarations or admissions of a party to a civil suit against his interest are clearly receivable in evidence.” McGahan v. Crawford, 47 S. C. 578, 25 S. E. 123. These exceptions are overruled. 3 Exceptions 4 and 5 allege error on the part of .the Circuit Judge in charging on the facts and passing upon the force and effect of the testimony and excluding from the jury the consideration of any facts in the case, except the amount of damages sustained by the plaintiff and in not setting aside the verdict of the jury and granting a new trial. *101 An inspection of the whole record will show that the contract in the case is made up by the memorandum of sale, the correspondence between the plaintiff and defendant and the admissions by the defendant. It is the duty of the Judge to construe all contracts which are in writing. We do not think that the record anywhere shows any reversible error on the part of his Honor, the Circuit Judge. The exceptions are overruled, and judgment of the Circuit Court affirmed.