Stanton v. Yarborough , 198 S.C. 445 ( 1942 )

January 2, 1942. The opinion of the Court was delivered by I concur with Mr. Chief Justice Bonham in his disposition of the first question discussed in his opinion, but I think the judgment below should be reversed and the plaintiff granted a new trial upon the second issue made by the appeal. This issue is based upon the ground that the lower Court erred in excluding from evidence the plans and specifications of the Player house, from which plans and specifications, slightly changed, the respondent's house was built.

The only point of difference between the parties was the price for which it was agreed the work should be done. The evidence excluded was offered for no other purpose than to enable the jury to decide which of the prices claimed by the respective parties was the true price agreed upon. Of course, the weight of the evidence would be more or less affected by the other circumstances of the case, and be increased or diminished in proportion to the difference between the price claimed and the actual value of the work done and materials used. But it was of some value, as tending to show the improbability of the claim of the defendant, and to aid the jury in arriving at the truth upon the point at issue between the parties. It was, therefore, relevant and admissible for what it was worth in connection with the other evidence in the case.

The apparent disparity, as shown by the evidence, between the value of the work and materials contracted for, and the contract price claimed by the defendant, was sufficient, I think, to render the evidence competent for the purpose of rebutting the evidence of the defendant — that the price agreed upon was less than that claimed by the plaintiff. It was a circumstance tending to weaken the probabilities in favor of the defendant's claim, and tending to strengthen the probabilities in favor of the plaintiff.

According to the plaintiff's testimony, the house which he built for the defendant was a duplicate of the Player house, with minor changes, and the contract entered into between the parties was based upon the plans and specifications of the Player house. This evidence was offered, not as a ground of recovery, as in quantum meruit, but solely as tending to establish what the price actually agreed on was.

In 17 C.J.S., Contracts, § 602, page 1249, the general rule is stated to be that "in an action on an express contract evidence as to the value of the subject matter, or of the services to be rendered under the contract is inadmissible, unless it is introduced for the purpose of showing whether a controverted contract was entered into, or to establish what the price actually fixed on was."

A like principle is expressed in 13 C.J., Section 975, page 774: "As a general rule in an action on an express contract evidence as to the value of the subject-matter, or of the services to be rendered under the contract is inadmissible, unless it is introduced for the purpose of showing the likelihood of whether a controverted contract was entered into, or to establish what the price actually fixed on was."

The foregoing principle, it seems to me, is sustained by the case of Edward Walter v. Enterprise Bank, 87 S.C. 84,68 S.E., 961, which was an action on a special contract for professional services by architects. In that case the Court said: "But it does not follow that under a complaint for services based upon a special contract testimony as to the reasonable value of the services is wholly irrelevant and its admission reversible error. While such testimony may not be admitted as a ground of recovery, it is admissible and relevant, when there is conflict as to the existence and terms of the special contract, for the purpose of showing which statement as to the special contract is probably correct. Tarrantv. Gittelson, 16 S.C. [231], 234, 9 Cyc., 767, and note 74."

The introduction of the plans and specifications of the Player house would have tended to establish the value of services and the amount of work and material involved, and would have given some support to the contention of the plaintiff as to what was the contract price agreed upon.

Where the disparity between the value of the work contracted for and what is claimed to be the contract price is small, and in the fair range of what different persons might esteem to be a fair value, such evidence would be very slight, but where the difference is very great, and beyond the range of fair difference in judgment, it might be entitled to much weight, and the wider the difference, proportionably stronger would be the evidence furnished by it. The controversy between the parties was as to the price agreed upon for the work and material. The plaintiff claimed that he was to be paid under the contract the sum of $4,350.00. And the defendant claimed that the contract price amounted to $3,400.00. As I view the case, the excluded evidence, that is, the plans and specifications of the Player house, was admissible as bearing upon the probabilities of the case, as tending to show whose contention was correct.

The judgment of the Court is that the case be reversed and remanded for a new trial upon the grounds stated.

MR. ASSOCIATE JUSTICE BAKER and MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER concur.

MR. CHIEF JUSTICE BONHAM and MR. ASSOCIATE JUSTICE STUKES dissent.