44 S.C. 46 | S.C. | 1895
The opinion of the court was delivered by
This is an action brought by George Lamb Buist, as receiver of the Assistance Building and Loan Association, against the above named defendants, to recover judgment for the sum of $58,000, damages alleged to have been sustained by said association, on account of negligence on the part of said defendants in the discharge of their duties as president and directors of said association. The case was placed for trial on Calendar 1, but, on motion of defendant’s attorneys, was ordered by the presiding judge to be transferred to Calender 2, on the ground that the case was one in equity, and not at law.' When the case was called for trial on Calendar 2, the defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendants have appealed to this court on exceptions assigning error on the part of the Circuit Judge in overruling the demurrer; and the plaintiff has appealed because his honor, the presiding judge, ruled that this is an equity case, and ordered it transferred from Calendar 1 to Calendar 2. For a proper understanding of the questions in this case, it will be necessary to incorporate in the report of it, the complaint, the answer, the order transferring the case from Calendar 1 to Calendar 2, the order overruling the demurrer, the exceptions of the plaintiff, and the exceptions of the defendants.
Therefore, taking the period of service by years, it stands thus: 1888, Alexander Melchers, president. Board of directors — -Daniel Eavenel, Jacob Kruse, Patrick Darcy, A. F. C. Cramer, W. H. Welch, and J. Alwyn Ball. 1881h the same. 1885, the same, until September. 1886, Alexander Melchers, president. Board of directors — Daniel Eavenel, Patrick Darcy, Jacob Kruse, A. F. C. Cramer, W. H. Welch. 1887, the same. 1888, the same. 1889, the same. 1890, up to September, the same, except that B. Feldman became a member of the board in September, 1889. 1891, Alexander Melchers, president. Board of directors — Patrick Darcy, Jacob Kruse, A. F. C. Cramer, W. H. Welch, Eobert Martin, F. W. Cappelmann. 1892, Alexander Melchers, president. Board of directors — Lee Loeb, Eobert Martin, F. W. Cappelmann, B. Feldman, Patrick Darcy, Jacob Kruse, A. F. C. Cramer, and W. H. Welch.
The ninth paragraph of the complaint sets forth the particular acts of negligence alleged to have been committed by the defendants, and are as follows: That the defendants failed to meet monthly, as required by the by-laws of the association, in order to dispose of funds; failed to'hold the stated meeting to pass on loans; to inspect the books and accounts of the association; to have annual statements properly audited; to see that drafts on the treasury were properly signed; to require a proper bond from the treasurer; allowed the funds to accumulate in the hands of the treasurer instead of lending them out; put forth yearly incorrect and untrue statements, and misrepresented the condition of the association; did not verify by vouchers the faulty and incorrect statement of the treasurer; certified and misrepresented that $67,272 had been spent in buying and retiring shares of the association, when this was false; failed to verify the alleged purchases of stock, and calling for the production of ttye scrip so alleged to have been bought, and having them cancelled; and did not enforce the penalties
The defendants are, therefore, only liable for their proportionate parts of the damages alleged to have been sustained by t.heir negligent acts committed at different times, and in order to ascertain the proportionate amount for which each was liable, it was necessary to resort to a court of equity. The proportions in which the defendants are liable can only be determined by an accounting of their acts and doings as officers of the association, and to make such an accounting is peculiarly the province of a court of equity. Having reached the conclusion that the defendants are only liable for their proportionate parts of the loss sustained by reason of their alleged acts of negligence, and that the proportions in which they are liable can only be determined by an accounting as to their official acts, it would seem'to be unnecessary to cite authorities to show that a court of equity is the proper forum for such accounting and adjustment of proportions iniwhieh they are liable. The distinction in eases-where the liability of the directors is for a fixed and definite^amount, and where they are only liable for & proportionate part, which can be determined only by an accounting, is pointed out in a number of cases, amongst which we may mention: Hornor v. Henning, 93 U. S., 228; Pollard v. Bailey, 20 Wall., 520; Terry v. Tubman, 92 U. S., 156; Stone v. Chisolm, 113 Id., 302—all cited with approval in Hall & Co. v. Klinck, 25 S. C., 348. In support of our view, that this is a case in
Section 181 of the Code provides that “when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made more definite and certain by amendment.” The remedy in such cases is not by demurrer, but by motion to make more definite. Mobley v. Cureton, 6 S. C., 49; Childers v. Verner, 12 Id., 6; Hellams v. Switzer, 24 Id., 39; Dowie v. Joyner, 25 Id., 153; Holland v. Kemp, 27 Id., 623; Chapman v. City, 28 Id., 373; McCown v. McSween, 29 Id., 130; Westlake v. Farrow, 34 Id., 270; Cartin v. South Bound R. R. Co., 43 Id., 221. The first exception is overruled.
It is the judgment of this court, that the orders appealed from be affirmed.