Supreme Court of South Carolina, 1920

Autrey v. Bell

Supreme Court of South Carolina · Decided July 26, 1920 · Watts

103 S.E. 749; 114 S.C. 370; 1920 S.C. LEXIS 148 (South Eastern Reporter)

Counsel

Messrs. Brown Boyd , for appellant, cite: Comments by Judge during trial were carried to the extent of making him participant in decision on the facts, and new trial should be had: 73 S.C. 379 ; 81 S.C. 374 ; 87 S.C. 407 . Custom and usages of trade may be proven: 8 S.C.L. (1 Mill.) 305; 11 S.C. Eq. (2 Hill) 359. But must be shown to be such as are notorious and well established: 28 S.C.L. (1 Spears) 249; 81 S.C. 432 . Burden put on defendant by the charge: 90 S.C. 211 . Where agreement provides for compensation in one contingency, which does not occur, it . Messrs. Hannon Mansfield , for respondent, cite: Evidence of usage and custom inadmissible to vary express contract, free from ambiguity: 2 Elliott on Contracts, pp. 1139-40, sec. 1803; 44 S.C. 227 . Provision in contract for forfeiture of wages for misconduct must be strictly construed against the employer: 35 Ill. App. 481 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an action for commissions under a contract between the parties for sale of certain commodities, the allegation being that the plaintiff was employed by the defendant to render to the defendant certain personal service. The case was tried before Judge Memminger, and a jury, at the April term of Court for Spartanburg county, nd resulted in a verdict in favor of plaintiff for $127.78.

iter motion for a new trial was refused and judgment entered defendant appeals.

1 Exceptions 1, 2, and 3, impute error on the part of his Honor, by remarks made with reference to witnesses, and testimony during the course of the trial. These exceptions are overruled. The remarks of his Honor were not such as to make him a participant in the decision, of the facts upon which the issue depended, and we cannot see that the defendant was prejudiced thereby to such an extent as would warrant a reversal.

2 Exceptions 4 and 8 question the correctness of ruling, in ruling out evidence of custom and usage of trade, and refusing to charge that custom and usage of. trade, with respect to the matters involved, would be binding as a part of the contract between the parties. The suit was in a special contract; there was no forfeiture in it *375 There was no denial by the defendant of plaintiff’s employment by him. Plaintiff was to have fixed commissions on each article sold. These commissions were definite and fixed. The evidence of custom and usage had nothing to do with the express contract, the basis of plaintiff’s claim, and could not vary or explain the same; it was unambiguous in its terms. Both parties agreed there was a contract and his Honor committed no error as complained of. These exceptions are overruled.

3,4 Exceptions 5 and 6 relate to his Llonor’s charge as to the defendant’s defense. The evidence showed on behalf of both plaintiff and defendant, and answer also admitted, that the plaintiff sold certain articles for the defendant, and plaintiff was to receive certain, definite, and fixed commissions. There was no evidence that there was a condition of forfeiture in the contract between the parties, and his Honor merely stated the issues of the case. We see no error. These exceptions are overruled.

Exception 7 is overruled, being without merit.

5 Judgment is affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.