Alexander v. Meroney

30 S.C. 335 | S.C. | 1889

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The property of the appellant was levied upon by a distress warrant, caused to be issued by the respondent, John S. Meroney, as agent of his wife, Kate E. Meroney, to whom it was alleged that the appellant ivas indebted in the sum of $222 for the rent of a brick office situate in Camden, belonging to the said Kate E. This property was released from the levy by appellant giving bond, &c., for the bringing of this action ; whereupon the action below was instituted.

In his complaint, the plaintiff alleged that a copartnership had existed between himself and the said Kate E. Meroney for the manufacture of brick upon certain terms, one of which was that each should share the profits and losses thereof in proportion to the money, labor, and materials furnished or rendered by each; that said business w7as under the management of the said John S. as agent; that this business continued until in September, 1884, at which time they had on hand, besides what had been sold, some 200,000 brick; that no settlement had been made, but that besides a small amount, $51.65, received by the plaintiff, the defendants were indebted to plaintiff at least $256.14, and also that the said John S. was indebted as agent aforesaid $68.04; that it was understood and agreed, that at any time during the continuance of the business aforesaid, pending a settlement, that his indebtedness for rent, the correctness of which was admitted, should be paid from what might be due him from the copartnership, &c., and he prayed judgment against the defendants for $77.18, balance claimed to be due him upon a fair settlement of the partnership matters, after crediting on the rent a sufficient amount to discharge the same.

The defendants denied the partnership alleged, and claimed, that instead of a partnership existing between the plaintiff and the defendant, Kate B. Meroney, that there was a partnership between the plaintiff and defendant, John S., of the kind mentioned in the complaint, to wit, for the manufactm-e of brick, and, afrer alleging other matter’s in reference to said partnership, claimed that there had been a loss in the business of $603.56, for half of which the plaintiff was indebted to the said John S., and judgment of the dismissal of the complaint was demanded, and a decree for the sum of $301.78, half of the loss above, against the plaintiff in favor of the defendant, John S. Meroney.

At the trial the following issues were by consent submitted to a jury, to wit:

“Was the defendant, Kate E. Meroney, a party to the copartnership alleged in the complaint?” Answer, “Yes.”

“2nd. Were the terms of the copartnership, that each party should share in the profits and bear the losses in proportion to what each contributed?” Answer, “No.”

3rd. “Or were the terms of the copartnership, that each should contribute equally and share profits and bear losses equally?” Answer, “Share profits or bear losses equally.”

4th. “Did the business result in profits or loss ?” Answer, “Loss.”

5th. “If in profits, what was the profit? Answer, —-.

6th. “If in loss, what was the loss?” Answer, “Loss $397.07.”

7th. “Was there an agreement between plaintiff and John S. Meroney, as agent of Kate E. Meroney, or in any other capacity, that what was due by plaintiff for rent of the office should be offset against what was due him from the copartnership?” Answer, “Yes.”

8th. “What amount, if any, is due the plaintiff by the defendants on account of the brick business?” Answer, “$58.61; also $68.04, his account.”

9th. “What amount is due the defendants by the plaintiff on account of the brick business ?” Answer,-. .

10th. “What proportion of the losses did the plaintiff bear?” Answer, “Equal.”

11th. “What proportion of losses, if any, did defendants bear?” Answer, “Equal.”

12th. “What amount of the capital did the plaintiff contribute?” Answer, “$307.79.”

13th. “What amount did the defendants bear?” Answer, “$921.42.”

Upon the return of these findings by the jury, his honor, Judge Witherspoon, rejected the findings as to a partnership existing between the plaintiff and Kate E., and also as to the agency of John S. therein, and he found as matter of fact, that there was a partnership between the said plaintiff and the said John S. He also rejected the finding as to the agreement between them, that the rent of the office should be paid from the plaintiff’s interest in the partnership. He also found that of the capital furnished, the plaintiff contributed $307.79 and the defendant, John S., $921.42, aggregating $1,229.21; that plaintiff realized $51.65, and defendant $780.49, and that the business resulted in a total loss of $379.07; that each party was to share equally in profits and losses. From these facts, he concluded as a final result, that the defendant was indebted to the plaintiff in the partnership matters in the sum of $57.60, besides his account admitted of $68.04, and he decreed in favor of the plaintiff the sum of $125.64 against John S., dismissing the complaint as to Kate E., with costs. (The decree of his honor should be incorporated. It will be found in the Brief.)

Both parties have appealed upon exceptions. The plaintiff, upon the grounds: 1. That his honor erred in holding that John ÍS. was not the agent of Kate E. 2. In dismissing the complaint as to Kate E., with costs. 3. That he did not hold that the plaintiff was entitled to have the sum of $125.64 adjudged to him credited on his indebtedness of $222 for rent.

The defendant, John S.: 1. Because his honor erred in deciding that defendant was indebted to plaintiff in the sum of $57.60, on account of the brick business. 2. That he should have dismissed the complaint as to both defendants. 3. That this being an action of replevin, the action should have been dismissed, and the defendants authorized to proceed with their remedy by distress for rent. 4. That he erred in giving judgment in favor of the plaintiff against the defendant for any amount. 5. That he erred in giving judgment against the defendant for costs.

The action below, as heard, was a novel one, in view of the fact that in its origin it was an action on the part of the plaintiff to test the right of a distress warrant levied upon his property for rent due, the ground taken by him being that there was a copartnership existing between him and his lessor in a brick business, and that it was the agreement between them that the rent should be paid out of his interest in this copartnership, and that said interest was more than sufficient to pay said rent; in fact, that above this he was entitled to a surplus, for which he prayed judgment. By the answer, the case was converted into an action by the defendant, John S., to settle a partnership in said business between himself and the plaintiff, and the decree, after dismissing the complaint of the plaintiff, resting upon the basis of an alleged partnership between the plaintiff and Kate E. Meroney with John S., the acting agent, proceeded to adjudge the rights of the parties, plaintiff and defendant, John S., in the matter of the partnership between them set up in the answer — an entirely new case. This, we think, was stretching the Code to its utmost tension; but no objection seems to have been made by either party to this course, and we will not interfere, but will adjudge the matters before us, as they have been presented.

One of plaintiff’s exceptions alleges error in his honor’s findings of fact, to wit, that he found that John S. Meroney was not the agent of his wife, Kate E. We do not see that this finding is either without testimony or that it is against its weight, and therefore we cannot disturb it under the well established rule in such cases.

Another involves a question of law and also a question of fact, to wit, whether the plaintiff was entitled to have the sum of $125.64 adjudged to him credited on the $222 admitted to be due by him for rent. This rent was due Kate E. Meroney, as the office occupied belonged to her. There is nothing in the testimony showing that she ever agreed that the copartnership should pay this rent from the plaintiff’s interest therein. And, therefore, his honor was correct in holding as matter of law, as he did.

As to the costs. This being an equity cause, the costs were under the control of the judge.

We see no error in the matter suggested in first exception of the defendant as to the $57.60 found due to plaintiff in the brick business.

Defendant excepts, secondly, that his honor did not dismiss the complaint as to both of the defendants. Perhaps such would have been the result but for the defendant’s answer setting up a partnership between himself and the plaintiff, and asking an adjustment of the rights of the parties thereunder.

As to the defendant’s 3rd exception. We think the decree below, dismissing the complaint of plaintiff in so far as Kate E. Meroney was concerned, substantially authorizes her to proceed as she-may be advised in the matter of the rent. The other two exceptions are overruled.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.