Opinion
18871
February 17, 1969.
Messrs. McKay, McKay, Black Walker, of Columbia, for Appellant-Respondent, cite: As to the proper measure of damages being the cost of completing the contract: 249 N.C. 680, 107 S.E.2d 538; 268 N.C. 292, 150 S.E.2d 420; 2 Ohio App.2d 297, 208 N.E.2d 150; 2 Speers Law 536, 29 S.C.L. 538; 128 S.C. 155, 122 S.E. 678; 6 R.C.L. 966. As to the amount to be remitted by the requirement of the Order for a New Trial Nisi being inadequate under the Testimony and the Judgment entered on the verdict continues excessive: 216 S.C. 456, 58 S.E.2d 734. As to error on part of trial Judge in admitting incompetent and prejudicial testimony: 244 S.C. 206, 136 S.E.2d 257; 231 S.C. 493, 99 S.E.2d 187; 230 S.C. 552, 96 S.E.2d 661; 11 S.C.L.Q. 111.
Messrs. Owens T. Cobb, Jr., and Lewis, Cobb Lewis, of Columbia, for Respondent-Appellant, cite: As to the trial judge properly charging the jury as to the measure of damages: 25 C.J.S., Damages, Sec. 76; 17 A.C.J.S., Contracts, Secs. 508-509; 22 Am. Jur.2d Defective Performance, Section 49; 76 A.L.R.2d 812; 13 Am. Jur.2d Building and Construction Contracts, Sec. 80; Restatement of Contracts, Sec. 346; 5 S.C.L.Q. 445; 128 S.C. 155, 122 S.E. 678; 17 A.C.J.S. 814, Contracts, 508 (b); 6 R.C.L. 966; 268 N.C. 292, 150 S.E.2d 421; 17 A.C.J.S., Contracts, Sec. 641; 48 Mont. 196, 136 P. 394; Chevis, 149; 236 S.C. 109, 113 S.E.2d 329; 15 Am.Jur., Damages, Sec. 43; 25 A.C.J.S., Damages, Sec. 179 et seq; 115 Ga. App. 315, 154 S.E.2d 627. As to verdict, as reduced, not being excessive: 25 A.C.J.S., Damages, Secs. 200 and 201. As to parol testimony being properly admissible: 198 S.C. 355, 17 S.E.2d 869; 127 S.C. 225, 120 S.E. 834; 247 S.C. 360, 147 S.E.2d 481. As to trial judge having wide discretionary power to reduce the amount of a verdict which, in his opinion, is excessive, and his judgment, in the exercise of that power, will rarely be disturbed: 225 S.C. 313, 82 S.E.2d 196; 227 S.C. 351, 88 S.E.2d 260. As to where trial Judge invades the province of the jury by reducing the verdict, the jury verdict should be reinstated: 25 A.C.J.S., Damages, Secs. 200, 201; 76 A.L.R.2d 858; 39 Haw. 500; 115 Ga. App. 317, 154 S.E.2d 627.
Messrs. McKay, McKay, Black Walker, of Columbia, for Appellant-Respondent, in reply, cite: As to Respondent's appeal from the Order granting a new trial nisi automatically entitling Appellant to a new trial: 245 S.C. 215, 139 S.E.2d 915; 105 S.C. 67, 89 S.E. 641; 247 S.C. 497, 148 S.E.2d 162; 66 C.J.S., New Trial, 209.
February 17, 1969.
Plaintiff was awarded a verdict in the amount of $5,000.00 for actual damages allegedly sustained as a result of the breach by defendant of a building contract. Subsequently, the trial judge, upon motion of defendant, granted a new trial unless plaintiff remitted upon the record fifteen hundred ($1,500.00) dollars of the amount of the verdict. Plaintiff in due time remitted in the amount ordered by the trial judge, but upon the written condition "that if the defendant elects to appeal the said court order, then the plaintiff hereby reserves any and all rights to appeal that portion of the said order which required that plaintiff remit. * * *." The defendant appealed, as has the plaintiff. We need only consider whether the conditional remission by plaintiff and the subsequent occurrence of the condition constituted a failure to remit, putting into effect the provisions of the order of the lower court granting a new trial absolute.
We have held that, when a plaintiff fails to remit in accordance with the order granting a new trial nisi, the effect of the order is to grant a new trial absolute. Strickland v. Prince, 247 S.C. 497, 148 S.E.2d 161. Such was the effect in this case of the conditional remission. Plaintiff remitted on condition that defendant did not appeal. When defendant appealed, there was no remission because plaintiff specifically conditioned his acceptance of the reduction in the amount of the verdict upon the absence of an appeal by defendant.
The order for a new trial was based upon the ground that "verdict of five thousand and no/100 ($5,000.00) dollars is not responsive to the evidence in this case and is excessive." An order for a new trial based upon such considerations is not appealable. Strickland v. Prince, supra.
Since a new trial absolute has been granted by the lower court, upon unappealable grounds, it is proper that the appeals be dismissed; and it is so ordered.