December 31, 1915. The opinion of the Court was delivered by This appeal follows upon the heels of 99 S.C. 501,84 S.E. 369.
The jury trial there directed resulted in favor of the defendant, Lakin, and the plaintiff, Bell, now appeals from the judgment.
There are six exceptions, four of which charge error in the admission of parol testimony, and two of which charge error in the charge of the Court.
But the appellant has devoted to the exceptions but three pages, in a not model argument in style and content, of twenty-four pages. *Page 98
The burden of the argument is directed to the postulate that the issue of notice to Lakin, directed by us to be submitted to a jury, was concluded by the master's finding that Lakin did have notice, and by a failure of the Circuit Court to consider that issue.
The defendant, Lakin, plead want of notice, and excepted to the master's conclusion that he had notice, and thereby made the issue before the Circuit Court.
The defendant, Lakin, it is true, did not seek to sustain here the decree of the Circuit Judge upon the additional ground that Lakin had no notice of Bell's claim of title.
Nevertheless, this Court did consider the issue of notice to Lakin, and did conclude with the plaintiff and with the master that Lakin had notice.
That question was not argued here by the appellant.
After the judgment of this Court had been filed, the attorneys for Lakin made a formal motion before this Court to reopen the case so far as the issue of notice to Lakin was concerned, and upon the ground that material parts of the defendant's testimony thereabout had been omitted from the case. (See 99 S.C. 501, 84 S.E. 369.)
It so turned out that there had been unintentional but material omissions of testimony, whereupon this Court ordered a rehearing, not here, but before a jury in the Circuit Court.
At the argument of the motion before us, the attorney for Lakin was present, together with additional counsel for Bell, and it was not then suggested even that the issue of notice had been aforetime adjudged by the master, and was, therefore, out of the case. It was assumed on all hands, so we understood, that if this Court had decided the issue of notice on an imperfect record, that the record ought to be corrected, and, of course, a new conclusion made from the new evidence. *Page 99
It was not until the jury had found against Lakin on the issue of notice that it was suggested to us that there was no such issue in the case.
We are clearly of the opinion that the time, and the only time, to have made that issue of law was when the attorneys for Lakin asked specifically that the issue of notice be retried upon the true testimony which had been developed.
We have examined with care the testimony presented to the jury, and upon which the jury found for the defendant.
There were four chief witnesses. Mr. McLaughlin against Mr. Herbert and Richard Bell against Isaac Lakin. The two first named are members of the Richland bar; the two last named are colored men.
Their testimony makes a sharp and unmixed issue of credibility, upon which we are relieved to have a jury pass; and we would not disturb the verdict had the jury been guided by correct instructions.
Now to the exceptions. Those first four which challenge the admission of testimony refer alone to testimony by Alice Bell.
The answer first excepted to was favorable to Richard Bell; it was therefore not hurtful to him.
The two answers in the testimony next excepted to were irrelevant to the issue of notice; but no inference of the lack of notice was deducible from them, and no other inference hostile to Richard Bell's claim.
The fourth answer excepted to was that of Alice, wherein she said her husband had never claimed any interest in the property to her knowledge. The proximate issue submitted was, did Richard Bell give Lakin notice of his title, and not did Bell claim the property.
If it should be established that Bell never claimed any interest, the inference might be argued that he, therefore, never gave notice of any claim of interest. *Page 100
In that view the question was barely competent. But the fact that Bell had never made any claim to the land was not relevant to prove that Bell had no equitable title in the land. That question was adjudged before, and in favor of Bell, and it was not before the jury, and it ought not to be mooted.
The last two exceptions refer to the charge of the Court. That part of the charge challenged by the sixth exception is free from error. A person is bound to take notice of these rumors which would attract the attention of the reasonable man; but not of those idle rumors to which a reasonable man would pay no heed. That was the pith of the charge.
The defendant, however, requested the Court to charge this, and the Court charged it: "The question of notice is for you, and you must decide whether or not, even if Bellspoke to Lakin as he says he did, whether or notsuch conversation gave Lakin such notice of the claim of Bell as would prevent a reasonable, prudent man from purchasing under the circumstances." (The italics are added.)
That instruction went to the heart of the case; it was wrong, and must work a reversal of the judgment.
It is true a jury has large latitude in the determination of what constitutes notice. The jury judges of the credibility of the witness, the accuracy and bias of the witness, the import of the words used, if they be of doubtful import, the time and place and position of speaker and hearer, as affecting the sure passage of the message from one to the other, and all the circumstances surrounding the transaction.
But a jury may not ignore the meaning of plain words and find a verdict against them and according to its whim.
There are signposts along the way to a true verdict which must be heeded. *Page 101
Bell testified he had three talks with Lakin about the purchase of the property. It is not needful to write all of them; they all agree he thus testified about the first interview: "Q. Tell what you said to Lakin, just what you said. A. I met him out there. I said, `Lakin, I heard you wanted to buy my place.' He said, `Yes, I was thinking about it.' I said, `Don't you know, as long as you have been in Columbia, don't you know it is my property, don't you know it is mine?' He said, `I think so.' I said, `Don't you know you ought not to buy, no business to buy; that is my piece of property. Now, if you buy this piece of property, you buy at your own risk. I ask you don't buy it; don't bother it. If you buy it, you buy a law suit.'"
If Bell so spoke to Lakin, and for the present argument that is admitted, the jury was not at liberty to decide whether the words amounted to notice or not. Only one reasonable conclusion may be drawn from the word, and that is they gave Lakin actual notice not to buy. 2 Pom. Eq., sec. 599.
If these words had been written down on paper and served by an officer on Lakin before he bought, that would be an end of the matter; notice would be proven.
It is not altered that the words were spoken. The only issue for the jury was, did Bell speak the words? If he did, then the words speak for themselves.
We are, therefore, of the opinion that there was material error in the charge, highly prejudicial to the plaintiff, and sufficient to work a reversal of the judgment.
It is so ordered; let there be a new trial.
MESSRS. JUSTICES HYDRICK, WATTS and FRASER concur in the opinion of the Court.