Opinion
13092
March 16, 1931.
Before GRIMBALL, J., Bamberg, November, 1929. Affirmed.
Action by Columbia National Bank against C.F. Rizer, in which the defendant filed a counterclaim. From an order directing verdict in favor of plaintiff on defendant's counterclaim, defendant appeals.
The order of the Circuit Judge, requested to be reported, follows:
At the close of all the testimony, plaintiff, Columbia National Bank, made a motion for a directed verdict for plaintiff on the notes sued on in its complaint. The Bank also made a motion for a directed verdict for plaintiff on the counterclaims set up in the answer. I have heard the argument of counsel both for plaintiff and for defendant, C.F. Rizer. On the issue of his counterclaim defendant has the burden of showing that the failure of the Columbia National Bank to supply him with money, as alleged in his counterclaim, was the proximate cause of such damages as he may have sustained thereby. I am of the opinion that the defendant has failed to sustain this burden of proof on this issue. I am also of the further opinion that any damages which the defendant, C.F. Rizer, may have sustained, and as testified to by witnesses in this case, falls within that class of damages which are known as remote or speculative — certainly too much so to be the basis of an intelligent determination by any Court or jury. On this ground, also, I am of the opinion that the plaintiff's motion for a directed verdict on the counterclaim of the defendant should be granted. That being the case, I intend to direct a verdict in this cause for the plaintiff in the amount due on the three notes set out in the complaint.
Messrs. B.D. Carter and Kearse Kearse, for appellant, cite: Damages flowing from breach of contract recoverable: 91 S.C. 421; 149 S.C. 424; 81 R.C.L., 141; 105 S.E., 543; 132 S.C. 262.
Messrs. Elliott, McLain, Wardlaw Elliott, John Roddey, Harley Blatt and E.H. Henderson, for respondent, cite: Breach must be proximate cause of damage: 128 S.C. 347; 1 Strob., 548; 17 C.J., 728, 734, 735, 738, 742, 1060. Party cannot recover damages which might have been avoided: 133 S.C. 61; 90 S.C. 512; 17 C.J., 767, 771; 24 R.C.L., 85. Speculative damages not recoverable: 107 S.C. 202; 25 S.C. 71; 111 S.C. 481; 17 C.J., 753, 754, 755. Estoppel: 75 U.S. 489; 10 R.C.L., 694; 139 S.E., 227; 35 A.L.R., 1270; 7 S.C. 102; 74 S.C. 575. Rule as to parol evidence applies to negotiations leading up to execution of written instrument: 151 S.C. 44; 148 S.E., 648. Plaintiff not having tendered mortgage cannot sue for breach: 153 U.S. 564; 6 R.C.L., 948. Contract constituted novation: 138 S.C. 20; 20 R.C.L., 360; 29 Cyc., 1130; 128 S.C. 442; 149 S.C. 386; 28 S.C. 115; 46 C. J., 573, 578-586, 577, 589, 618, 630.
March 16, 1931.
The opinion of the Court was delivered by
This action, commenced December 27, 1928, is upon three notes executed by the defendant to the plaintiff bank, dated March 12, 1928, aggregating $25,000, upon which there is alleged to be due $13,351.45 with interest and attorney's fees.
Though it is not specifically so stated in the transcript, it does not appear that there is any controversy between the parties as to the amount due upon the notes.
The defendant interposed a counterclaim for damages upon the ground that the bank breached its contract to furnish him with certain funds to carry on his mercantile and agricultural interests.
At the conclusion of the testimony the plaintiff moved for the direction of a verdict in its favor upon the notes and upon the defendant's counterclaim. The motions were granted. The record does not show the amount of the verdict, or indeed that a verdict was rendered, although the counsel for the defendant state in their brief that a judgment was entered upon "the verdict so directed by the Court." The exceptions raise only the question of the correctness of the Judge's order directing a verdict in favor of the plaintiff upon the defendant's counterclaim although the record does not show that any such verdict was rendered.
If there was a judgment, it must have been for the balance appearing to be due upon the notes, and from it the defendant may have appealed, basing his appeal upon the ground that his counterclaim had been disallowed. There being no appeal from that judgment, the appellant is not rectus in curia and his appeal is subject to dismissal.
Notwithstanding this, we have reviewed the facts of the case and find no just ground of complaint against the ruling of the Circuit Judge.
The judgment of this Court is that the appeal be dismissed and the order of the Circuit Judge be affirmed.
MESSRS. JUSTICES BLEASE and STABLER, and MR. ACTING ASSOCIATE JUSTICE MENDEL L. SMITH concur.
MR. JUSTICE CARTER did not participate.