March 14, 1916. The opinion of the Court was delivered by This is an action to recover $982.50, alleged to be due the plaintiff by the defendants, for failure, on the part of the defendants, to comply with their part of an agreement in writing, which contains, substantially, these provisions: Whereas, T.D. Harris has this day deeded to John F. Harris, W.T. Jeans, M.C. Smith, and W.T. Bates a certain tract of land, for the sum of $4,320, which is at the rate of $30 per acre, according to the survey made by G.A. Ellis, October 13, 1909, which survey only shows 144 acres, which is about 80 acres less than the deeds to the said Harris call for; and, whereas, it is the purpose of the said Harris to have the land surveyed again, within the next 10 or 15 days, he agreeing to have the same done at his own expense: Now, we each agree to the following, viz.: When a resurvey is made, satisfactory to all concerned, should it show more than 144 acres, we are to pay the said D.T. Harris in cash, *Page 40 on the day such overage is found, $30 per acre for such overage. And should it be found from the survey that there is a shortage, or less than 144 acres, then and in such event the said D.T. Harris is to pay or return to the parties hereinbefore mentioned, for any shortage found in like manner.
The deed of conveyance from T.D. Harris to the grantees hereinbefore mentioned bears date the 19th of October, 1909. The land was not resurveyed, until the 24th of January, 1912. The survey then made showed that the tract contained 176.75 acres. In the meantime, the defendants had conveyed a part of said land to B.F. Freeman, on the 22d of February, 1910, as containing 60 acres, more or less, and to S.G. Boggs the remaining portion, as containing 84 acres, more or less. S.G. Boggs died shortly thereafter, and that part of the land conveyed to him was partitioned among his heirs; these two parcels aggregating 144 acres. The jury rendered a verdict in favor of the defendants, and the plaintiff appealed upon exceptions, which will be reported.
First exception: In the first place, his Honor, the presiding Judge, ruled that the time mentioned in the said agreement was not of the essence of the contract; and, in the second place, the testimony was responsive to the allegations of the following defense interposed by the defendants, to wit:
"That it was the intention and agreement of the parties to the contract that the resurvey should be made within the time specified, to wit, within the next 10 or 15 days, and that the resurvey within such time should be a condition of the plaintiff's right, without which the contract should be void, and if the said condition is not explicity stated in the said contract, it is because of a mutual mistake of the parties thereto, and was due to the error of T.D. Harris, the plaintiff herein, who drew it, in that he did not clearly and definitely express the terms and conditions of the contract, as *Page 41 agreed to by the parties, and that said contract should be so reformed as to express the agreement above outlined."
The following authorities show that said testimony was admissible: Moore v. Edwards, 17 S.C.L. (1 Bailey) 23;Glover v. Gasque, 67 S.C. 18, 45 S.E. 113; Hodges v.Kohn, 67 S.C. 69, 45 S.E. 102; Madden v. Ins. Co., 70 S.C. 295,49 S.E. 855; Holliday v. Pegram, 89 S.C. 73,71 S.E. 367; Watson v. Paschall, 93 S.C. 537, 77 S.E. 291.
Second exception: The charge which gave rise to this exception is merely to the effect that it is required of every one to take advantage of his rights, at a proper time, and the neglect to do so will be considered a waiver. That part of the charge mentioned in the exception did not undertake to say what would constitute a proper time, and we are unable to discover in what respect it was prejudicial to the rights of the appellant.
Third exception: What has just been said disposes of this exception.
Fourth exception: This exception was abandoned.
Fifth exception: The plaintiff's first and second requests to charge were as follows:
"(1) Whether or not time is of the essence of a contract is a question of construction to be decided by the Court, upon an inspection of the contract. (2) Under the contract of October 19, 1909, I charge you that time is not of the essence of said contract."
Both requests were charged. This construction had reference to the words of the contract, appearing upon its face, and not to the issue of fact, raised by the defense, that there was a mistake on the part of the plaintiff, in reducing to writing the agreement of the parties. The words, "if they find a time fixed," in the defendant's sixth request, evidently contemplated that the jury might reach the conclusion that there was a mistake as alleged in the defense. *Page 42
In regard to the question whether the plaintiff knew that the defendants were reselling the land as containing only 144 acres, the record shows that the plaintiff testified:
"I did not know that they had bought the land for the purpose of reselling it. It was a natural supposition that they had bought it to sell."
The words, "When he should have spoken" in said request clearly show that his Honor, the presiding Judge, did not intend to charge that mere silence would estop the plaintiff from contesting the fact that the acreage was not correctly set forth in the deed, but that such fact should be determined, in the light of all the testimony.
Sixth exception: There was testimony from which the jury might reasonably have drawn the inference that the facts were, as alleged in the defense, hereinabove mentioned, and, if so, then there was a failure on the part of the plaintiff to perform his part of the contract.
Judgment affirmed.