Twiggs v. Williams

The opinion of the Court was delivered by

The printed “Case” contains between six and seven hundred pages. It was admitted, at the hearing, that not more than one-third of the matter contained therein is per *454 tinent to the questions presented for decision. Examination shows that, if it had been prepared according tO' the rules, it could probably have been reduced to1 from one to two1 hundred pages. The Court would, therefore, be warranted in dismissing the appeal, without consideration of the merits, because of the violation of its rules. In numerous cases, the bar have recently been admonished about this matter. If these admonitions continue h> gx> unheeded, the Court will be compelled to1 protect itself by dismissing the appeal, when the “Case” is not prepared according* to1 its rules.

1 In preparing the “Case,” instruments of writing, such as the pleadings, wills, deeds, notes, bonds, mortgages, bills of lading, policies of insurance and the like should not be set out in full, unless the instrument is to be construed; and, even then, only so much of it as is necessary to’ a proper construction should appear. Ordinarily, it is sufficient to state the substance of such instruments; but, if special consideration of any part is desired, such part should be set out in full, and the substance of the remainder stated. If it should happen, as it sometimes does, that the different parts of an instrument are so dependent upon other, or otherwise so' correlated that the whole is necessary to a proper understanding or construction of any part, then the whole instrument should appear. But we often find in the “Case” the whole of a bill of lading or policy of insurance, when only one clause or stipulation is tO' be. considered or construed. Deeds and mortgag*es are often set out at length, including the probate thereof and renunciation of dower, when the part necessary for consideration could be stated or set out in half a dozen lines. This is not only an unnecessary tax upon the time and patience of the Court, but it is a useless waste of,the money of litigants.

Whenever it is necessary to present the testimony to this Court, it should be stated in narrative form, and only the substance of it given, without repetition, omitting all that is *455 irrelevant tO' the issues to be decided. When the questions and answers are necessary to elucidate the point to be decided, or it is desired to call attention to* the exact language of a witness', the same may' properly be inserted.

It may be suggested that it is often difficult for counsel to' agree as to' what is a correct synopsis of the evidence. In such cases, let the Circuit Judge decide between them. If he rules, erroneously, his ruling' is subject to1 appeal, to> be heard in connection with the principal appeal; and this Court will decide the matter, and impose the payment of costs and' disbursements accordingly, for counsel have the right, and it is their duty, to protect their clients against the possibility of having to pay for unnecessary printing as disbursements.

The bar is again warned that the rules of this Court must be complied with in the preparation of the “Cases” for "appeal, and that, in future, the Court will feel at liberty to decline to1 consider any appeal in which the “Case” is not prepared according to1 the rules.

The facts are clearly stated in -the master’s report. As will be seen b}r reference to that report, the master held that the contract between the parties was in writing, and that it consisted of the letters of May 17th and 20th, and so1 much of the contract between Williams & Co', and the railroad company as was applicable to' the work undertaken by Twiggs & Son, except as to prices and scope of work to be done by them.

2 The Circuit Court overruled this conclusion, and held, under the authority of Herlong v. Southern States Lumber Co., 93 S. C. 529, 77 S. E. 219, that the contract was partly written and partly verbal, the verbal part .consisting of the conversation referred in Williams & Co.’s letter of the 17th to Twiggs & Sons.

His Honor misconstrued the opinion 'of the Court in the Herlong case. In that case, the language of the letter which was construed tO' make a previous conversation a part of the *456 contract was as follows: “The administration of the company’s- -affairs- to- be along- the- lines which I talked o-f with you, when at Dunbarton, o-n Saturday.” The Court said: “The talk at Dunbarton was adopted as- a p-art o-f the contract, and, o-f course-, co-uld be p-ro-ved only by parol.” But, in this case, the letter o-f May 17th do-es not refer to- the previous conversation as a part o-f the contract, but the- reference to- them was fo-r the- purpose o-f confirming and making only so- much o-f them -as was included in the letter a p-art of the contract. The p-art not included therein was not con-finned, and was, therefore-, not a part of the contract. Plaintiffs’ letter of the 20th, in- reply s-ho-ws- clearly that they so- understood .the defendants’ letter of the 17th, fo-r they said, “yo-urs o-f the 17th, covering agreements made,” etc. If defendants-’ -letter of the 17th had not covered all the agreements made-, surely p-laintiffs would not have said that they did.

3 Twiggs & Son agreed that they would sign the same kind of contract with Williams & Co-, as the latter had with the railroad company. In the absence- o-f fraud, accident o-r mistake, they should not no-w be heard to say that they are- not bound by that agreement, because they did not know o-r understand the terms o-f the contract between Williams & Co-, and the railroad company. It was their duty to- ascertain what its terms were before agreeing to sign- it. Of course, if Williams & Co-, misrepresented its terms; Twigg-s & Son would b-e bound by it only in so- far as its terms were what they were- represented to- be-. But there is no- evidence o-f any such misrepresentation-, except in reference to the matter o-f unloading track material, which was waived by Twiggs- & Son, and is o-f no- consequence as to- the issues no-w -before- the Court.

Reason and authority abundantly support the proposition that o-ne contract may be made a part o-f another by reference to it. In Dunbar v. Ry., 62 S. C. 414, 40 S. E. 884, it was held that “where a shipper accepts- for freight delivered *457 to- a common carrier a receipt containing the provision that this shipment is received subject to the terms and conditions of the carrier’s regular bill of lading, for which this receipt may be exchanged, he has. such notice as will put him on inquiry of the terms and conditions of the bill of lading, and is bound by such terms and conditions.” The master’s conclusion was correct.

4 The next question is: Did the master and Circuit Judge err in holding that, as there were no- words in the contract limiting Twiggs & Son to- payment for excavation within the- limits of the roadbed, they should be paid for excavation outside those limits ? On this point, the testimony of the expert witnesses as to- the meaning of the words of the contract is conflicting, and, while we have been impressed by the able and zealous argument of appellants’ counsel, we cannot say that the preponderance of the evidence is against this concurrent finding of the master and Circuit Judge,—especially in view of the following provision in the contract submitted by Williams & Co-, to Twiggs & Son for execution: “Grading will include all excavations and embankments, and will be paid for 'one way’ o-nly, either for excavation or embankment, according to- the largest quantity.” The words of the proposed' contract are “all excavations,” etc. While the words “roadbed measurement” were not appropriate to the contract between plaintiffs and defendants, there is no' reason: why other words which w-o-uld have limited payment to quantities within the slope stakes could not have been used.

It follows, from what has already been said as. to what the contract was, that the Circuit Court erred in overruling the conclusions of the master that plaintiffs were not entitled to pay for surfacing material. The contract of defendants with the railroad company, by the terms of which plaintiffs were bound, expressly provides “that the price for track-laying and surfacing is to include the providing, delivery, *458 and putting in place all such surfacing material as is required by the specifications.”

The other points raised by the exceptions are overruled for the reasons stated by the master, which were concurred in by the Circuit Court.

The judgment of the Circuit Court is modified according to the view herein announced.