¶1 I concur in this opinion, and also in that of Mr. Justice Fraser.
¶2 The plaintiff sued the defendant upon a written contract to pay 15 bales of cotton per year for a term of ten years; the defendant answered and charged the contract to have been secured by fraud and set up a counterclaim; the jury found for the defendant, and plaintiff has appealed from judgment entered thereon.
¶3 The cause has been twice argued here, and the argument has been much after the fashion of that to be had in a cause in equity, when the cause here is a plain one at Jaw.
¶4 In such an event we may not weigh the testimony and test the preponderance of it. If there be no harmful error in the course of the trial, and if there be testimony tending reasonably to support the verdict, then the judgment ought, of course, to be affirmed.
¶5 We think the instant case is none other. The parties to the action are men in mature life, well known in the community of Dillon where they have always resided, and the jury there knew them and heard what they had to say. They were practically the only witnesses to the essential transaction, and the determination of the issue made by it depended upon the credibility of the two men.
¶6 The transaction has this historical setting: One Price, of Dillon, had a valuable landed estate; he died testate and left Bethea et al. executors of his will, his chief devisee was a man named Rising, and the executors were made trustees to pay Rising the income; the executors in August, 1908, leased the lands to David for five years, commencing with 1909 and ending with 1913, for fifty bales of cotton per year, and Rising was to get the income at the hands of the *217 executors; in 1909 Hamer, by some unexplained transaction betwixt himself and Rising, secured Rising’s right to the rents; in May, 1913, David desired to secure, and did secure from the executors, a lease of the lands for ten years more, starting with 1914, for a rental of sixty bales of cotton per year; on the same day Hamer secured from David the execution of the contract in issue to pay to him fifteen bales of cotton as additional rent for each of the ten years.
¶7 The contract reads thus:
¶8 Dillon, S. C., May 13, 1913. For value received on or before the ISth day of October of each and every year beginning October the 15th, 1914, and ending October the 15th, 1923, I promise to pay to Wm. M. Hamer, or order, fifteen (15) bales of lint cotton, to average 500 pounds and grade nothing below middling as additional rent the lands this day rented by' him for me from J. B. Gibson, W. T. Bethea and W. D. B. Hayes, executors of the estate of H. P. Price, deceased. J. H. David. Witness: J. W. Lanford.
¶9 The executors had no knowledge of the existence of this contract until three and a quarter years after its execution. At the time the contract was signed the executors had agreed with David to lease to him the land for a term of ten years for 60 bales of cotton per year.
¶10 The major issue in the case is the integrity of the contract before set out; that issue was submitted to the jury, and the verdict was against the contract. David testified he signed the contract because Hamer told him that the executors had leased the land to him, and his only chance to retain it was to pay Hamer 15 bales extra; and that such statement was false and made to induce the 15-bale contract. The quick of the case lies just there.
¶11 Thereabout David testified: “He told me that he had leased the land from the executors. He said, ‘You can not get it for sixty bales.’ I said, ‘Mr. Hamer, what do you want for it?’ He said, T can get seventy-five bales, I believe I can get one hundred bales, but I am going to let *218 you have it for seventy-five bales.’ I said., ‘who can you get that much from ?’ He said,‘from Ed Moore. He will give it to me;’ and he said ‘there are others in this community.’ He said, ‘To tell you the truth, I believe I can get one hundred bales, but I am willing to let you have it for seventy-five bales.’ He represented to me that he had a lease of the land, so I told him that, in fact, I asked him, ‘Does that mean that I will get the entire place?’ He says, ‘Yes.’ I says, ‘Well, I will have to think about it.’ It was about dinner time when I went home; while I was at home the telephone rang, and I went to the phone, and it was Mr. Hamer, and he told me the executors, Mr. Bethea and Mr. Gibson, have signed the contract and lease for sixty bales, and said, 'Come on down and let us fix it up.’ … In signing it I took Mr. Hamer at his word, that he had leased the place. T took h'im to be a friend, and I had confidence in him.”
¶12 If David swore truly, and the verdict fixes that fact, he was induced by a false statement of Hamer to sign a contract to pay 15 bales extra, when, in fact, the executors had agreed to lease to him for 60 bales.
¶13 That action on Hamer’s part amounts to getting goods under a false pretense.
¶14 But counsel for Hamer says that David was not misled because the lease of the executors to him for 60 bales was before his eyes when he signed the contract. That argument, too, was for the jury and not for us; if the jury believed what David swore to, and the truth of it depended upon his veracity, that ends the argument.
¶15 And counsel also say that David was not hurt by the conIract, because he admitted on the witness stand the land was worth 75 bales rent. It is true David must have been misled to his hurt in order that he may have relief now. But a Court will not use fine scales to weigh the hurt. 2 Pomeroy, sec. 898. David was hurt when he was induced by a false statement of fact to act upon that fact as if it were true.
¶16*219 It is idle now for the executors to say they would have exacted 75 bales of cotton had they known that Hamer demanded so much.
¶17 The fact is they agreed in writing to take 60 bales, and did take it; David had aforetime agreed with them by parol to pay 60 bales, only one feature of the lease' was left open, that with reference to the time the lease was to run.
¶18 . The intervention of Hamer at that juncture with a fabricated statement that he was lessee,.was the lever to prize fifteen additional bales out of David.
¶19 Had the fraud not been committed, David would have got the property for 60 bales of cotton. That is damage sufficient. 12 R. C. L., page 392, sec. 139.
¶20 It is contended, further, that David had lost his right to a remedy by part performance of the alleged fraudulent contract, and by a too long delay in disavowing the balance of it.
¶21 This argument proceeds on the maxim volenti non fit injuria. It is also a trite saying, and a true one, that a man must help himself before he resorts to the law.
¶22 Dike every rule the application of these depends upon the circumstances of the case.
¶23 There is no proof that David knew that Hamer had made a false statement when the 15 bales of cotton was paid in 1914 and 1915. David did not deliver the 15 bales of cotton in 1916 “because I discovered that Hamer had misrepresented matters. … In the summer of 1916 I found out about the situation and I declined to pay any more cotton.”
¶24 And when Hamer sued for the further performance of the contract, David was bound then to state his defense.
¶25 David did not act to indicate that he knew Hamer had deceived him, and that he consented to the wrong.
¶26 That is the kernel of the rules before adverted to.
¶27 But counsel for the appellant says that David may not hold the benefits of the transaction and eschew the hardship of it.
¶28*220 Such a rule had no application hereDavid abides by the contract he made with the executors; he repudiates a separate and severable one which he made with Hamer. The two transactions are totally different.
¶29 At the second argument it was suggested by counsel for Hamer that the benefits of the contract were due to the executors and that the executors ought to be made parties to assert these benefits.
¶30 But the executors have no contract with David except for sixty bales per year. They were satisfied with that and made a contract to that end. Hamer has sued at law on a contract he made with David; and the sole issue is the validity of it.