Dissenting Opinion.

[113 S. C. that we can do is to hold that the result of the election has not been legally ascertained and declared, and that the actions of the executive committee in attempting to do so were affected by errors of law, prejudicial to the petitioner, Hyde, and must be set aside, and it is so adjudged.

MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER con

cur.

MR. JUSTICE WATTS, dissenting. I cannot concur in the opinion of Mr. Justice Hydrick. In my ouinion the controlling and crucial point involved in the case is the legal one: Did the executive committee have the right to refer the matters that they did to a subcommittee, which subcommittee was to report back to the executive committee for their action, which was done, and the full executive committee did act? Under a writ of certiorari this Court can only consider the record set up by the executive committee, and on that record only consider questions of law, and not questions of fact, unless their findings are wholly unsupported by the evidence.

The campaign between Mr. Hyde and Mr. Grace was conducted with almost unparalleled and unprecedented bitterness. At the primary over 7,000 votes were cast; 70 votes were challenged and 14 votes are in dispute. The 7,000 voters are not complaining; they are satisfied, apparently, with the result. A primary election cannot be conducted in the same orderly manner that a case is tried in Court. Neither can the executive committee decide a contest as a case is tried. The executive committee have no sheriff to enforce attendance of witnesses and carry out their orders, with the power, if necessary, of summoning a posse comitatus, but have to do the best they can and exercise common sense and follow the usual custom in such matters.

Primaries belong to the political branch of the government, and as a general rule are beyond the control of judicial

power. As nothing is involved in this but political rights, I am opposed to the Court's interference in any form.

The petitioners have recognized the importance of controlling the executive committee, for an effort was made to this Court to interfere with the formation and composition of it, which proceeding was dismissed. I am decidedly of the opinion that the executive committee had the right to refer to subcommittee, and they confirmed the subcommittee's report and recommendations, which, to all intents and purposes, was the action of the executive committee, the same as if they had heard and determined the contest in the first instance.

The President's election in 1876, after the creation of the Electoral Commission, was decided by a vote on party lines. During the bitter contests in the '90's all contests were decided on factional lines. The proceedings show that on every vote before the executive committee they voted on factional lines, and I feel that I would stultify myself if I were to say that the executive committee would have voted differently, had there been no subcommittee. I have no doubt that the vote would have been the same. The question before us is essentially political, and not judicial, in its character, and the interference by the Courts is dangerous and contrary to the liberty of voters and freedom of elections, and inimical to the doctrine, rules, customs, and usages of political parties. No such power has been conferred on this Court, except as heretofore indicated, and if it were I would loath to exercise it in the case before us. If petitioners feel aggrieved, and feel absolved from their oath to support the party's nominees, they should have it determined by the voters in the general election. I do not feel that the people of Charleston, under the showing made, should have inflicted on them another election, with its bitterness, opening of old wounds, and chances for bloodshed and riot. The Grace faction has a large majority of the aldermen unquestionably. The executive committee decided the contest

Syllabus.

[113 S. C. before it, and declared the result, acting within the scope of the authority vested in them. Their decision of facts cannot be reviewed by us in the proceedings before us. Their decision on the fact is final, and no errors of law have been committed, and I think the proceedings should be dismissed. MR. JUSTICE Gage concurs.

10289

JOWERS v. DYSARD CONSTRUCTION COMPANY.

(100 S. E. 892.)

1. DISMISSAL AND NONSUIT-NONSUIT AS TO ITEMS OF ACCOUNT OR SEPARATE ELEMENTS OF DAMAGES.-A nonsuit cannot be granted as to items of an account or separate elements of damages, but the remedy is by a request to charge that the objectionable items and elements of damage are not recoverable.

2. CONTRACTS EVIDENCE; PERFORMANCE. In an action by subcontractor against the contractor to recover for work done in constructing manholes and flush tanks in a sewer system for a city, where plaintiff had testified that his work was satisfactory to the city and its inspectors, evidence by the city engineer, as to whether plaintiff's work was satisfactory, was improperly excluded.

3. Damages—BREACH OF CONTRACT; ELEMENTS.-Where plaintiff subcontractor had performed part of the work under a contract for the construction of manholes and flush tanks in sewer system in subservience to defendant's contract with the city, the value of plaintiff's services in the performance of the contract was an item to be considered in the cost of performance.

4. EVIDENCE-HEARSAY; REPORT OF CITY INSPECTOR INADMISSIBLE.—In a subcontractor's action against a contractor to recover for the construction of certain manholes and flush tanks in sewer system, where plaintiff had testified that his work was satisfactory to the city, a report of a city inspector was properly excluded as hearsay. HYDRICK, WATTS and GAGE, JJ., dissenting in part.

Before MEMMINGER, J., Richland, Spring term, 1918. Reversed and new trial ordered.

Action by J. M. Powers against Dysard Construction Company. Judgment for plaintiff, and defendant appeals.

Messrs. J. Fraser Lyon and Nettles & Tobias, for appellant, cite: As to what one is entitled to recover when wrongfully prevented from completing an executory contract: Sedgwick on Damages (9th Ed.), p. 614; 3 Elliott on Contracts, pp. 2138 and 2149; 13 Corpus Juris 796; 8 R. C. L. 511; 58 S. C. 373 (1900); 51 S. C. 143 (1897); 39 S. C. 427. (1893); 33 Ind. 54; 5 Am. Dec. 177 (1870); 83 Ala. 614; 11 So. 60 (1891); 7 Hill 61; 42 Am. 38 (1845); 150 (Cal.) 769 (1915); 75 N. E. (Mass.) 219; 51 Neb. 700; 71 N. W. 776 (1897); 12 S. W. (Ark.) 201 (1889); 58 So. (Ala.) 941 (1912); 157 S. W. (Ky.) 23 (1913); 135 S. W. (Tex.) 260 (1911); 8 Am. & Eng. Ency. 663 (note); 9 N. W. 1 (1881). As to the admissibility in evidence of the reports of J. T. Burdell, city inspector: II Wigmore on Evidence, par. 1521; 45 S. C. 651 (1895). As to allowing the jury to take with them to the jury room papers not in evidence: 38 Cyc. 1834; 50 S. C: 95; 25 S. E. 555.

Mr. W. N. Graydon, for respondent, cites: As to excluding the report of J. T. Burdell, city inspector: 108 S. C. 195; 103 S. C. 270. As to the measure of damages recoverable by plaintiff: 70 S. C. 8; 8 A. & E. Ency. Law 614; 29 S. C. 393; 66 S. C. —; 110 U. S. 338; 28 L. Ed. 168; 4 Sup. Ct. Rep. 81; Advance Sheets of U. S. Supreme Court No. 4, decided 9th December, 1918; 83 S. C. 118. As to permitting jury to take papers to room: 58 S. C. 94; 65 S. C. 258; 41 S. C. 192; 89 S. C. 153; 86 S. C. 170; 96 S. C. 277.

November 11, 1919.

The opinion of the Court was delivered by Mr. Justice FRASER.

The respondent in his argument on appeal makes the following statement of the facts:

"J. M. Jowers made a contract with the Dysard Construction Company to build certain manholes and flush tanks in the city of Columbia. Dysard Construction Company had

a contract with the city of Columbia to build these things and hired Jowers to do certain parts of the work. The contract was in writing and specifically stated the price of the manholes and flush tanks as so much per foot. The testimony showed there were 84 manholes and 173 flush tanks to be built.

"Jowers commenced work on the contract and bought a mule, and wagon, cement, brick, and other material, and built four manholes and eleven tanks, when the defendant drove him off of the work and refused to allow him to finish the contract. The plaintiff then commenced this action, and demanded judgment for the sum of $1,674 damages for breach of the contract and $96.91 for work already done.

"He expressly sought damages for the profits he alleged he would have made on the work, basing his estimate on the amount he had made on the work already done.

"The answer of defendant was a general denial and an allegation that plaintiff had voluntarily abandoned the work and that it had paid him for the work already done."

The judgment was for the plaintiff, and the defendant appealed upon eight exceptions.

1. The first three exceptions complaint of error in refusing a nonsuit as to separate items of the account. These

exceptions cannot be sustained, as there is no pro1 vision for a nonsuit as to items of an account, or separate elements of damages. The remedy is a request to charge that the objectionable items and elements of damage are not recoverable.

2. The next objection is that the witness, T. K. Legare, was not allowed to answer the question, "Was 2 Jowers' work satisfactory to your inspectors and yourself?"

The witness was the city engineer. The plaintiff, when on the stand, said:

"I knew the work would be under the city engineer, and that his inspector would check me up and report to the city.