Greene v. Duncan

The opinion of the court was delivered by Me. Justice Pope. This action was tried before his honor, Judge Hudson, and a jury, at the October term, 1891, of the Court of Common Pleas for Union County. After verdict for defendant, judgment was duly entered. Plaintiff now appeals, raising four classes of exceptions. 1. Error of Circuit Judge in not sustaining plaintiff’s demurrer to paragraphs 3, 4, 5, 6, and 7 of defendant’s answer, because they failed to state facts sufficient to constitute a defence. 2. Error of Circuit Judge in not holding, on a request therefor, that the acceptance sued on here was a valid and binding acceptance, and rendered the defendant liable as an acceptor. 3. Error of Circuit Judge in ■not holding that if the acceptance was a conditional' one, that then the only question for the jury was, “Has the condition been performed?” 4. Error of the Circuit Judge in his charge to the jury by an expression of his opinion as to the facts. 1 1. It is scarcely necessary for this court to do more in reference to plaintiff’s demurrer than was done by the appellant himself, in his argument before this court on this point, viz., do nothing j for by this action of appellant., we might imagine that he was willing to forego this exception. However, in the abundance of caution, we have examined the pleadings to see if this objection was tenable, and fail to find any just grounds therefor. 2. This and the succeeding exceptions have raised very nice points of law, not only of interest because of the legal learning involved in their consideration, but also because of their belonging to that branch of the law that affects society in every quarter alike, viz., the law relating to commercial transactions. [247] It seems that in 1888, the defendant made a contract in writing with one E. D. Sharkey, whereby the latter agreed to build a block of brick stores for the defendant in the town of Greenwood. Sharkey was to furnish all the labor and materials needed to build the block of stores, according to the written, specifications, for the sum of $4,550, and to move a house for $275, additional. On the 18th of October, 1888, the said Sharkey had not finished the buildings. During the progress, of Sharkey’s work on such buildings he had purchased some material, therefor from the plaintiff Greene, who, becoming uneasy as to the payment of his bill therefor, wrote to Duncan, the defendant, at Union O. H. (his place of residence), asking him for payment of his bill. Duncan replied by telegraph, on October 12, 1888: “Get Sharkey to give you an order on me for the amount at once, and I will pay it.” Nothing was done by Greene, the plaintiff, until the 18 October, 1888, at which date, Duncan being in the telegraph office at Greenwood, Greene again applied to him to help him secure his debt. Duncan, in reply, stated he would do any thing he could to help him. Thereupon Greene telegraphed to Sharkey in these words: “Can’t you wire Mr. Duncan to pay me three hundred dollars? I am in trouble. Please answer at once.” Sharkey on same day telegraphed Greene: “Tell Duncan to pay you three hundred dollars for me.” When this telegram was shown Duncan, he told Greene: “It is a matter of course that I cannot pay you any money until Mr. Sharkey finishes the building; Sharkey is not a responsible man, and I have no, guarantee that he will ever finish those buildings. I will: promise you this much: that when I accept this order, under • the conditions on which I will accept it, I will never pay Mr.. Sharkey another cent until those buildings are completed; it makes no difference what may be the demands that will be made.” Thereupon Duncan, the defendant, wrote, on the back of the telegram sent to Greene by Sharkey,- these words: “Whenever Mr. Sharkey finishes his contract for the'building of my two stores in the town of Greenwood, I will honor the within order.” Sharkey was told by Duncan what he had done. Sharkey requested an advance by Duncan: of $25, so [248] that he could go hack to Greenwood, and Duncan refused to make the advance. Sharkey.never touched the work afterwards, and upon the written demand of Duncan, accompanied by a notice, that if Sharkey failed to do so within a specified time, he would let the completion of the building to some one else, Sharkey failed and refused to complete the work. Hence, Duncan consulted others, with a view to having the work completed according to the specifications adopted by Sharkey. He was informed that the work could not be completed under Sharkey’s contract, in view of the poor work of Sharkey, and the balance of the work to be done, at less than $3,000. This Duncan refused to do, but by curtailing the work contemplated in his contract with Sharkey, he (Duncan) got another contractor to finish the work for $650, which was done, and paid for by Duncan. Duncan had paid Sharkey up to 18 October, 1888, $4,060. He also paid $200 for material used by Sharkey, making his payments between $4,900 and $5,000, while his contract with Sharkey only called for an aggregate payment of $4,825. The plaintiff in his complaint set out the employment by Duncan of Sharkey; the fact that plaintiff furnished some material to Sharkey; the application of plaintiff Greene to Duncan to pay plaintiff’s account against Sharkey; all the telegrams above recited; that, on the 18 October, 1888, Duncan had $800, or more, in his hands, belonging to Sharkey; that Sharkey, or some one for him, had long since finished Sharkey’s contract for the building in question; that Duncan refused to pay the order. In his answer, the defendant admitted his contract with Sharkey; all the telegrams and the acceptance of the order in the language complained; denied that Sharkey had ever completed the contract; alleged its completion by himself; denied that he, on the 18th October, 1888, owed Sharkey $800, and denied that, at the date of the suit, he owed Sharkey anything; and also denied his liability to pay the order. [248] At the hearing, the foregoing facts, given as a history of the transactions, were put in evidence. The plaintiff requested [249] the judge to charge : “a. That the telegram, which is set out iu the complaint, signed by T. C. Duncan, and promising to pay an order on him by B. D. Sharkey, and the endorsement on that order made by T. 0. Duncan when presented to him by F. 0. Greene, must be construed together, and, taken together, they constitute a valid and binding acceptance, and render the defendant liable as an acceptor. ’ ’ The judge, in his charge to the jury, said: “That is all right, so far as it goes. If the words were added, ‘valid according to the terms of acceptance,’ then it would be a valid proposition. The proposition with that qualification is correct.” Was the judge in error as to this qualification? Appellant lays stress upon the word “whenever,” urging that its meaning here is “at whatever time,” citing Webster as his authority therefor. Suppose we were to read the acceptance with these words substituted for the word “whenever,” could we escape the undisputed testimony to which no exception was taken at the trial, that the parties, both Greene and Duncan, agreed that this acceptance should operate as a conditional acceptance, or, as it is expressed in the testimony, an acceptance on condition? It must always be borne in mind that the plaintiff, on the 18th October, 1888, elected to take the written acceptance of Duncan. Hot only so, but he has complained upon the order of Sharkey with the qualified acceptance by Duncan endorsed thereon. It seems to us that if he had chosen to rely as his cause of action against Duncan upon Duncan’s telegram of the 12th of October, agreeing to pay the order if obtained at once, 1 and the order by telegraph of Sharkey of the 18th October, 1888, there might be greater force in his reasoning; but. having-in fact allowed Duncan to qualify his acceptance of the order, and also having embodied that qualified acceptance in his complaint, he cannot now escape the consequences legitimately flowing from his own acts. It is well understood as the law [250] pertaining to acceptances, that if the acceptor desires to limit his liability thereunder, he must do so at the time of such acceptance, and if in writing, to be incorporated as a part thereof. As is said by Mr. Justice Wayne, in The United States v. Bank of the Metropolis, 15 Peters, 395: “If one purpose making a conditional acceptance only, and commit that acceptance to writing, he should be careful to express the condition therein.” After a careful consideration of this point in the appeal, we conclude that the Circuit Judge committed no error here. A Circuit Judge must make his charges on propositions of law have reference to the issues involved in the case before him. As it has often been held, it is no part of his duty, when he comes to charge the jury, to embrace deliverances by him on abstract or theoretical propositions of law in no wise applying to the issues before him. It is perfectly competent for him, if he regards any requests to charge to belong to this last category, to decline to consider them. Of course, if he should err in his judgement in these particulars, he would be reversed here on appeal. 3 “b. That an acceptance of an order or an inland bill of exchange by a person renders him liable to the holder of the'bill, without regard to the fact whether or not the acceptor had funds of the drawee in his hands.” The Circuit Judge held: “That is very true, if the acceptance be absolute and unconditional.” The quotation made by appellant from the cáse of Short v. Blount, 99 N. C., 49 (5 S. E. Rep., 191), is: “By the acceptance of a bill of exchange is meant the act or declaration by which the drawee therein named evinces— makes manifest—his assent and agreement to comply with and be bound by the request and order contained in the bill directed to him, according to its tenor, if the acceptance be absolute (italics ours). It is, in substance, an agreement to pay the sum of money specified in the bill, as therein directed. 1 Chit. Bills, 281; Story Bills, § 238; 1 Pars. N. & B., 281. No particular words, or form of words, or manner, are necessary to a valid acceptance, but it should generally be in writing, because that is orderly, promotes the convenience of business transactions, renders them more certain, and facilitates the proof of accept [251] ■anee.” We accept this enunciation of the law as correct. By its very terms it supports the Circuit Judge. All that is said is true, provided the acceptance is absolute. That is exactly what the charge provides. There is no error here. 4 ‘ ‘c. Because his honor having charged the j ury, as requested in the second part of the plaintiff’s requests to charge, it was error in his honor to charge the jury, as requested in the third part of plaintiff’s request to charge, said request being made upon the condition that he refused the first two propositions of plaintiff’s requests to charge, and the subdivisions thereunder.” The appellant, as plaintiff, used this language to the Circuit Judge, in regard to the conditional requests to charge: “If the presiding judge refuses to charge the above requests, then the plaintiff requests him to charge,” &c., some additional requests. Certainly, it cannot be questioned that the plaintiff’s language was susceptible of the construction placed upon it by the Circuit Judge. Besides, the plaintiff’s counsel were in court, giving close attention to the judge’s charge, and, if an inadvertent mistake was made of the requests by the judge, his attention should have been called to it. Much must be left to the wise discretion of the trial judge in the matters of detail, in the trial of causes. His decisions, upon the order of business in this court, will seldom be interfered with. In his order settling the case, the Circuit Judge says: “I remark, in the outset, that no exceptions to my charge to the jury were taken by either party at the trial.” This must guide this court, and we overrule this exception. 5 3. The third proposition of the appellant is: “That, if the acceptance is a conditional one, then the only question for the jury was, whether or not the condition had been performed.” Now, it must be remembered that the judge only charged it as a general proposition, that “the acceptance, endorsed upon the order as set forth in the complaint, renders the defendant liable as on a conditional acceptance, and that, upon the performance of the condition, the acceptance became absolute, and the defendant cannot shield himself by claiming that he has no funds in his hands belonging to the drawer. ’ ’ This charge of the judge would have been conclusive [252] of this case, if SharJcey had finished his contract for the building of defendant’ s two stores, in the town of Greenwood. It is unquestioned law in this State, that a conditional acceptance becomes absolute when the condition is performed. Hunton v. Ingraham, 1 Strob., 271. The plaintiff, if this proposition alone was involved, would have had his case to terminate adversely to him the moment it was in proof that Sharkey did not carry out his contract, and that thereby he had not fulfilled the condition attached to the acceptance of the order. Additional life, for the time being, at least, was given to the plaintiff’s case by that proposition of law that was charged by his honor, and to which no exception was made by defendant, and which thereby becomes the law in this case: “That the telegram, and the endorsement on the telegraphic order in this case by T. C. Duncan, constituted an equitable assignment of whatever fund the jury should find to be in Duncan’s hands, belonging to E. D. Sharkey, after the expenses of completing the building according to the original contract with Sharkey, up to the amount of the plaintiff’s order.” It thereby became a question of fact, • under this charge, for the jury to determine, and the appeal here will be dismissed, unless there can be discovered some grounds for a new trial under the next, which is the last, exception of appellant. 6 4. Was there a charge upon the facts at the trial by the Circuit Judge? There is no longer room to doubt that this court will enforce the observance in the Circuit Court of the rule prescribed by the Constitution of this commonwealth, whereby it is denied to judges to express an opinion to the jury upon the facts. This rule is admitted on all hands. The duty of this court is to determine if the trial judge trenched upon this rule. Did he, in his charge, express an opinion upon the facts? This court, in Woody v. Dean, 24 S. C., 505, held: “What is meant by the constitutional inhibition upon a judge in charging on the facts, as we understand it, is, that as to any disputed matter of fact in issue between the parties” (italics ours), “while he may state the evidence, read it over to the jury, or state it orally, yet is not permitted to give his opinion as to its force and effect.” Here is a judicial [253] construction of this provision of the Constitution, and by its express terms such inhibition extends only “to any disputed matter of fact in issue between the parties.” Now, let us see in the “Case” if the trial judge did comment upon any such disputed matter of fact; for if he did, it was a fatal error, but if he did not so err, the judgment will stand. The 10th ground of appeal complains that there was error in this particular in this part of the judge’s charge: “Then, the fundamental inquiry is, did Mr. Sharkey complete the building according to his contract? Sharkey says he did not; he says he went off and left it. That ought to be good evidence on defendant’s side. Mr. Duncan says he did not do it, Mr. Wells says he did not do it, and there is no Witness that says he did. If he jumped his contract, quit his contract, and did not complete it, then one of the fundamental terms or conditions of acceptance there is gone.” If there was no testimony opposed to such failure of Sharkey to complete the contract, we are at a loss to see where was any disputed matter of fact in issue between the parties. Here all the testimony was on one side. Such being the condition of this matter of complaint, let us turn to the next in order. 7 The 11th ground of appeal is: “Because his honor erred in charging the jury as follows: ‘And you can find for the plaintiff only in the event that you find that after all these expenses that Mr. Duncan has explained to you, he still has money of Sharkey in hand that he can give Mr. Greene,’ said charge taking out of the hands of the jury the question as to whether the expenses were proper or not, and being in direct conflict with the request of plaintiff to charge the jury that the order in this case and the endorsement thereon rendered the acceptor liable as on a conditional acceptance.” By reference to the “Case,” it will be seen this is a clause of a sentence. This court will not lend itself to such an injustice to the Circuit Judge; of course, itis notintended to say that there was any intention on the part of counsel to do the Circuit Judge this injustice. Counsel may as well understand, and comply therewith, that this court will pursue this course in such cases. [253] Next. This is the 12th ground of appeal: “Because his honor [254] erred in charging the jury as follows: T charge you, gentlemen, that the amount paid as testified to by Mr. Duncan was proper, because it was necessary to be paid in order to complete this matter. If it was necessary, it was proper,’ said charge being upon the facts of the case, in violation of article IV., section 26, of the Constitution, and taking away from the jury, even under the judge’s view of the case, one of the material facts in the case.” By reference to the “Case,” the foregoing is not a faithful reproduction of the language used by the trial j udge. It should have read: “I charge you, gentlemen, that the amount, if paid, as testified to by Mr. Duncan,” &c. The addition of this word “if” makes everything plain. The j udge was charging upon a hypothetical statement of the testimony and the law that would govern the jury in such case. This was not error. 9 Next. The 13th ground of appeal is: “Because said charge, taken as a whole, clearly intimates the judge’s opinion upon the facts of the case, and is in violation of the Coustitution of the State, prohibiting judges from charging upon the facts of the case.” We scarcely think, with all the patience of this court, that the appellant can seriously urge such a general impeachment of a judge’s charge for error, and, under the well known rules regulating the hearing of appeals, expect a consideration of it. We are sure that in this case itself the court has taken great pleasure in considering all the grounds presented to us (and they are not few), but, in all candor, there must be a limit to exceptions when too general, and we think the limit is easy of sight in the case at bar, so far as this ground of appeal is concerned. 10 Lastly. In the 14th ground of appeal it is alleged as error: “Because the presiding judge having charged the jury that Duncan would not have any right to claim damages against Sharkey for work badly performed by Sharkey, before the order was accepted, and there being no evidence upon that x>oint, it was error in his honor to state the testimony as to the damages on the building being badly constructed, before the acceptance of the order.” It will be learned by a reference to the “Case” that the judge, in his charge on the 4th [255] subdivision of class III. of tbe requests to charge, added the words to such request relating to the subject of Duncan’s rights to claim damages for work badly performed by Sharkey, before he accepted the order: “Not if he knew it was badly done.” No exception has been taken to this exposition of the law on this subject by the trial judge, and for this case it is law, this request having been called forth by the appellant; and the trial judge stating to the jury such testimony as bore on this point, to the end that the jury might consider the whole case as developed at the trial. The judgment of this court is, that the judgment of the Circuit Court be affirmed. Footnotes [1] One of the plaintiff’s exceptions was: “Because it was error to charge the jury that the action was brought upon the acceptance alone, which was endorsed upon the order; said action being brought upon all the telegrams set out in the complaint, as well as upon the acceptance endorsed on the order.”