Foggette v. Gaffney

The opinion of the court was delivered by Mr. Justice McGowan. On March 26th, 1886, W. W. Gaffney, sr., died, and the defendants administered upon his estate. In June, 1887, this action was brought against them by the plaintiff for the recovery of an account ($750) alleged to have been due to him by the intestate. Two cause's of action .were set out in the complaint: 1st, for the balance due for building certain houses as a carpenter; and 2nd, for a sum of money due the plaintiff' as damages for breach of contract in the purchase and sale of certain lots of land in Gaffney City, &c. The defendants denied the whole claim, answering that if plaintiff ever had any demand against the intestate, either for work done or for money [308] received from the sale of lots as stated, the same had long since been paid in cash and by the board and lodging of the plaintiff by the intestate, about the time the account claimed is alleged to have been contracted, and the defendants insist that the plaintiff is now and was before the commencement of the action indebted to them, as administrators, on a counter-claim for said board and lodging and cash in the sum of $600. Further, that if there was any agreement as to lots of land between plaintiff and the intestate, the same was and is void under the statute of frauds; and also pleading the statute of limitations. A motion was made to require the plaintiff to elect upon which cause of action he would stand, and the motion being granted, the plaintiff elected to proceed on the cause of action for building the houses referred to — the judge, as stated, ruling: “I will hold that the only thing you can recover in this action, for work and labor done, is the balance due, and that is all you ask, and that this other is in merely as a matter of evidence.” It appeared that plaintiff did work for the intestate covering a considerable period, completed about the spring of 1880; that the evidence was conflicting as to its value, the board and lodging, &c. ; that the intestate died March 26th, 1886, and the action was brought against the administrators in June, 1887. The judge charged that if the work was completed before the spring of 1880, the action was barred, unless the bar was prevented by some intermediate act or acts of the intestate. There was evidence tending to show that the intestate, a short time (about ten days) before his death, acknowledged his indebtedness to the plaintiff and made a payment of $80 thereon. Upon that point, as to preventing the bar, the judge charged as follows: “The oral or verbal acknowledgment would not be enough, but the payment would. If a payment was made at that time upon any of the building contracts; if, in other words, the payment was made upon the statement of the accounts betwixt the two, it would save the bar of the whole account, and you will see now it becomes a material question for you to determine from the evidence, what that payment of $80 was upon. Was it made upon any balance due for the building, or was it made upon some land contract ? The expression of the witness is, that it was upon [309] land. * * * If it was a payment of a balance for the building, then the bar of the statute does not come in. So how will you apply that payment ? It is for you to say, under all the evidence, whether this claim is barred or not,” &c. The jury found a verdict for the plaintiff, and the defendants appealed, charging error, upon the following grounds, viz.: I. In ruling that so much of plaintiff’s complaint as related to land contracts between plaintiff and defendants’ intestate should not be stricken out, but should remain “in as a matter of evidence,” and in allowing the introduction of testimony upon such issues. II. In allowing the introduction of the letter written by one of the defendants to plaintiff’s counsel. III. In allowing the plaintiff to testify as to transactions between himself and defendants’ intestate. IV. In charging the jury upon the facts of the case. V. In charging the jury upon the value of the work done in such manner as necessarily to leave upon their minds the impression that the only testimony they should consider was the plaintiff’s testimony, and that they should be governed by that. VI. In not charging the j ury distinctly that if they believe the testimony in the case, more than six years had expired since the completion of the work alleged to have been done in 1877 and also in 1880, and no payment having been proved to have been made on either of said claims, they were both barred by the statute of limitations. VII. In submitting to the jury the question whether the payments proved to have been made were made on the building contracts or on the land contract, and instructing them that if the payment was “made upon the statement of the account betwixt the two,” it would save the whole account, when there was not a tittle of proof showing that said payments were made on any other account than the alleged land transactions. VIII. In refusing a new trial, when there was no evidence whatever to sustain the verdict. IX. In not at least granting a new trial, unless the plaintiff would remit all of his recovery except the sum of $140, the whole of the alleged claims being only $520, and the plaintiff having [310] alleged in his complaint that he had received $380 thereon, &c. As to the first exception, the matter charged as error did not in any way affect the case. In giving his reason for confining the plaintiff to his cause of action for work and labor, the judge is reported to have said, “The other is in merely as a matter of evidence.” We confess we do not clearly understand it, and think there must be some mistake in reporting his words. But whether or not, the case clearly shows that the statement of the cause of action referred to was not used “as a matter of evidence” to the detriment of the defendants, but the testimony was carefully restrained and limited to the cause of action for work and labor. The last exception seems to be founded on a misapprehension, for, as we understand it, the $300 had reference to the lots of land referred to, and was allowed in the statement of the account as a credit only against a charge of $650, which, as alleged, 'they had been sold for. But both the charge and credit were outside of the issue tried. The admission of a credit of $300, the price of the lots, could not, of course, be disconnected from the charge of what, as alleged, they were sold for. As to the second exception. It seems that plaintiff’s attorney, before he brought suit, wrote a note to the administrators upon the subject of the claim, and one of them answered that probably something was due to .the plaintiff from the-estate, but that they could not pay him anything until -there was a settlement. We cannot say that the admission of this'letter in evidence was error of law. As to the third exception, it is not stated in what respect the plaintiff was allowed to testify as to “transactions” between himself and the defendants’ intestate. We have read the whole “Brief” carefully, and we think all testimony inadmissible under section 400 of the Code was properly excluded. It is true, the plaintiff was allowed to testify as to what work was done on the lot and about the premises of the intestate, while .he was at home and could not have been ignorant of the fact. But, as we understand it, that was not necessarily “a transaction” with the intestate, now dead. “The plaintiff’s testimony was not incompetent under section 400 of the Code, as he only testified to acts of his [311] own, with which he in no way by his own testimony attempted to connect the deceased — such connection being made by another witness.” Rookhart v. Dean, 21 S. C., 597. Exceptions 4 and 5 complain that the judge violated his constitutional duty in charging upon the facts. We have read the whole charge carefully, and we cannot say that the judge trespassed upon the jury by charging improperly upon the facts. The matter was somewhat complicated, and he took pains to explain it. Exceptions 6 and 7 complain that it was error of law to submit to the jury the question whether the payment of $80 made by the intestate was on the account for work and labor, or the demand growing out of the alleged parol agreement as to the lots of land, or upon a statement of the whole account between the parties; with the instructions that if the payment was made upon the building contracts, or upon a general statement embracing that account, then it would prevent the bar of the statute; but if it was made only upon the claim growing out of the sale of the lots (not involved in this case), it would not prevent the bar. We cannot say that this was error of law; and the question of fact, which necessarily controlled the result, was fully and carefully explained to the jury, whose exclusive province it was to decide it. With full instructions they have done so, and we are without authority to review their decision. The judgment of this court is, that the judgment of the Circuit Court be affirmed. Mr. Chiee Justice Simpson. I concur in the result, as I do not think the statute of limitations is a bar to the action.