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June 24, 1957


The opinion of the court was delivered by: Legge, Justice.

   June 24, 1957.
In an action to recover the sum of five hundred ($500.00) dollars paid by the plaintiff to the defendant in a transaction relating to the purchase and sale of real estate, plaintiff obtained a verdict for that amount, with interest; and the defendant appeals.

Except for (1) respondent's check evidencing the payment, and (2) appellant's receipt therefor, the transaction between the parties was verbal; and the evidence as to its terms was, to say the least, conflicting. It appears undisputed that appellant owned and resided on a tract of some twenty-three acres in Spartanburg County, known as Mimosa Lake. He kept the lake stocked with fish, and rented to all comers the right to fish therein. Among his customers was the respondent, whose version of the transaction between them is set forth in his amended complaint substantially as follows:

On November 5, 1955, defendant offered to sell the Mimosa Lake property to plaintiff for $11,000.00, agreeing to give the plaintiff through November 10, 1955, to decide whether or not he would take it, and also agreeing that plaintiff should make a "down payment" of $500.00, which would be refunded in the event that he should decide not to take the property and should so inform the defendant on November 10. Plaintiff made said "down payment"; and thereafter, having decided not to take the property, went to the defendant's home on the morning of November 10 to so inform him, and, finding no one there, went again on the following day and then and there informed the defendant that he would not take the property, and asked for the return of his $500.00. Defendant did not at that time refuse to return the money, but merely told plaintiff that he would see him later. Thereafter, following another visit from the plaintiff, defendant on or about November 26, 1955 informed the plaintiff that, having had legal advice, he had decided to consider their trade closed and the money forfeited. Plaintiff alleged that by reason of these facts defendant was indebted to him in the amount of $500.00, with interest from November 11, 1955; and judgment in that amount was prayed.

The defendant's version is set forth in his amended answer as follows:

"1. That the defendant offered to sell to the plaintiff the property described in the Complaint for the sum of Eleven Thousand ($11,000.00) Dollars and that the plaintiff agreed to purchase the said property and to pay therefor the sum of Eleven Thousand ($11,000.00) Dollars and to bind the trade the plaintiff paid to the defendant, the sum of Five Hundred ($500.00) Dollars to be applied to the purchase price of the property or to be forfeited to the defendant if the plaintiff failed to comply with his contract to purchase the said property.

"2. That the defendant gave to the plaintiff a receipt for the Five Hundred ($500.00) Dollars at the time the trade was consummated. That the said receipt is made a part of this Answer as fully and as completely as it is copied in full herein. That the defendant has at all times been ready and willing to comply with the terms of the contract to sell and has acquainted the plaintiff with such facts. The plaintiff notified the defendant that he was not going to comply with the terms of his contract and told the defendant that he, the plaintiff, knew that he was forfeiting the Five Hundred ($500.00) Dollars that he had paid to the defendant to bind the contract. The plaintiff further stated to the defendant that he knew that under the law he could not collect the Five Hundred ($500.00) Dollars he had paid or any part thereof."

The prayer of the answer is that the complaint be dismissed with costs, "and that the Five Hundred ($500.00) Dollars heretofore paid to the defendant by the plaintiff be declared by the Court as forfeited to the defendant, and for such other and further relief as to the Court may seem just, equitable and proper."

The respondent's check, in evidence, is in the amount of $500.00, dated November 5, 1955, and payable to the order of the appellant. It bears the payee's endorsement, and is perforated as paid by the drawee bank under date November 7, 1955. The receipt in evidence, dated November 5, 1955 reads:

"Received of J.F. Tate 500 and No/100 Dollars.

"Down Payment on Mimosa Lake.

"H.G. LeMaster"

It appears that respondent, having learned that the property was for sale, went there with his wife on Saturday, November 5, 1955. To quote from his testimony:

"Q. When you and your wife got back down at the lake, who did you find in the yard? A. We found him.

"Q. You mean the defendant? A. That's right.

"Q. What conversation took place there? A. I asked him what he asked for it. He said `$12,000.00.' I said, `Wouldn't you take eleven thousand from me?' He says, `I might do it'. Well, I says, `Look give me till Thursday night to make up my mind, and I'll give you a 500-dollar check and if I decided to keep the place, keep it. But if I don't by Thursday night — I'll check and see if I can buy the place — and if not, you give me my check back.' He says, `That's fine'."

"Q. Mr. Tate, was there any further conversation relative to this matter that you can recall that you have not stated, on this first occasion of November 5, 1955? A. Well, nothing any more than I can remember I asked him to hold the place for me until Thursday night and I would give him a down payment of $500.00 check and if I decided not to take it, he would give it back to me Thursday.

"Q. What did he say after you told him you wanted to do that? A. He said sure, he would give it back to me. It would be fine.

"Q. Now, Mr. Tate, when was it that you said that you had, until what day, to let him know? A. Thursday.

"Q. Was that the Thursday following November 5? A. Following, yes sir."

Respondent's testimony with regard to the transaction of November 5 was corroborated by that of his wife. So far as it concerned agreement between him and appellant that he should have until the following Thursday (November 10) in which to decide whether or not to take the property, and that should he decide not to take it and so notify appellant on or before November 10 his payment of $500.00 would be refunded, it was flatly contradicted by the testimony of appellant and his wife, his son, and his daughter-in-law, all of whom testified that the deal was closed on November 5, that the words "Down payment on Mimosa Lake" were inserted in the ...

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