April 15, 1901. This opinion was filed, but remittitur stayed on petition for writ of error to Supreme Court of United States; but no other orders having been asked for, the Reporter thinks proper to publish it. The plaintiff brings this action to recover the sum of $1,562.50, besides interest thereon, alleged to be due him by defendant under a contract, the terms of which are set forth in the complaint. The defendant in its answer denies that the contract between it and the plaintiff was as alleged in the complaint, but was, as it is alleged to be in the answer, and that, under the terms of the contract as set forth in the answer, there is nothing now due to the plaintiff. The case came on for trial before his Honor, Judge Klugh, and a jury, and a verdict having been rendered in favor of the plaintiff, and judgment having been entered thereon, the defendant appeals from such judgment upon the several exceptions set out in the record. These exceptions (omitting the first, which has been very properly abandoned), together with the charge of the Circuit Judge, will be incorporated by the Reporter in his report of the case. *Page 403
Before proceeding to the consideration of the exceptions, we desire to say that all of the material questions presented in this case, except the question of waiver or estoppel, as it is termed in the exceptions, have been conclusively determined, at least so far as the parties to this case are concerned, by the decision of this Court in a previous branch of this case, reported in 54 S.C. 582. The defendant made no effort to have that decision reviewed by any higher tribunal, and, therefore, whether it was right or wrong (though we must say that we think it was entirely right, and that any other conclusion than that then reached would have operated a fraud upon the plaintiff), it must be held absolutely conclusive, so far as the parties to this case are concerned. This Court there held: 1st. That the proper construction of the contract between the parties was that contended for by the plaintiff, and not that contended for by the defendant. 2d. That the contention that because the defendant has no money in its treasury applicable to the claim of the plaintiff, did not defeat plaintiff's cause of action. 3d. That the position taken by defendant, that the contract, if construed to be a contract, fixing a definite time for the maturity of the shares, would be ultra vires, could not be sustained. But the question whether the plaintiff had waived his right to insist upon his contract as originally made, by becoming a borrower some time after the plaintiff had received the certificates for the twenty-five shares, the par value of which he is now claiming, was left open; and that, as it seems to us, is the only question which is now open. It is contended, however, by the counsel for the defendant, who is now the appellant here, that the here, because the should not be regarded as conclusive here, because the answer of defendant was not before the Court when that decision was made "nor the contract of loan," and that all the questions raised by the pleadings were not before the Court, and consequently could not be passed upon. We think that an examination of the record of the case before the Court at the time of the former hearing will show that *Page 404 this is a mistake, except so far as the answer is concerned, and that being merely a statement in legal form of the grounds of defense, throws no more light upon the questions involved than the facts which were then before the Court afforded. An examination of the opinion of the Court in the former decision will show that the Court then the before it the terms of the certificates of shares, the "literature" of the association — that is, the printed circulars and leaflets issued by the association, the express promises made by the duly authorized agents of the defendant, the fact that the plaintiff had effected a loan from the defendant, the charter and by-laws of the association, and the fact that defendant did not have in its treasury, at the time when the shares matured (as contended for by plaintiff), the money applicable to plaintiff's claim — and that all these matters were considered and passed upon by the Court under the former appeal, except the question of waiver, as above stated.
Coming, then, to the exceptions, and passing by the first, which, as already stated, was abandoned, we take up the second exception. That exception is based upon a misconception of the Judge's charge, and for that reason must be overruled. The question as to the construction of the contract was not left to the jury. On the contrary, the jury, after having been told how the Supreme Court had construed the contract, were instructed to inquire, as a matter of fact, whether the defendant had, by its agents or by its written or printed "literature,' made such representations to the plaintiff as induced him to believe that the contract "was a contract for a limited number of payments, and that upon the completion of those payments it would be a fulfilment by the plaintiff of his side of the contract, and an absolute obligation on the part of the defendant to pay the amount of $100 a share." That was a pure question of fact, which it was the province of the jury to pass upon.
Exceptions 3, 4, 5, 6, 7, 8, all impute error to the Circuit Judge in refusing to charge the several requests therein repeated, in reference to whether this was a New York contract, *Page 405 to be construed according to the laws of that State. These questions were distinctly made under the former appeal, as is shown by the points and authorities of counsel for defendant under the former appeal, at page 589 of 54 S.C. above cited, and, therefore, cannot be renewed here. These exceptions are overruled.
Exception 12 cannot be sustained, for the representations which the jury were instructed to inquire into, were not in reference to a future fact.
As to the 13th exception, we are at a loss to perceive what relevancy such an instruction has to the case as made by the plaintiff. The exception is overruled.
As to exceptions 14, 15, 16 and 17, it seems to us that they are disposed of by what has already been said, and these exceptions are overruled.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.