Summerton Live Stock Co. v. Cleveland Mfg. Co.

• Decision Date: 28 June 1920
• Docket Number: 10417.
• Citation: 103 S.E. 516,114 S.C. 186
• Parties: SUMMERTON LIVE STOCK CO. v. CLEVE-LAND MFG. CO. ET AL.
• Court: South Carolina Supreme Court

103 S.E. 516

114 S.C. 186

SUMMERTON LIVE STOCK CO. v. CLEVE-LAND MFG. CO. ET AL.

No. 10417.

Supreme Court of South Carolina

June 28, 1920

Appeal from Common Pleas Circuit Court of Clarendon County; John S Wilson, Judge.

Action by the Summerton Live Stock Company against the Cleveland Manufacturing Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

L. E Wood and M. W. Seabrook, both of Sumter, for appellants.

J. J Cantey, of Summerton, and Charlton Du Rant, of Manning, for respondent.

GAGE J.

The appeal is from a formal order of the circuit court which affirmed the report of a referee.

The issues tried by the referee were both of law and fact, and they arise out of a controversy between the Summerton Live Stock Company, a domestic corporation engaged in the business of keeping a stable, and the Cleveland Manufacturing Company, a North Carolina corporation engaged in the business of manufacturing wood veneer out of poplar logs, all in Clarendon county, of this state.

The substance of the controversy is the keep of six mules, which keep is alleged to have started early in 1917 and continued up to December 16, 1917, and is alleged to be worth the lump sum of $648.02.

The mules were stabled with the Summerton Company by one Early, a party named in the action, but not served, and now, of course, out of the case.

The mules were used in the logging business, and the Summerton Company thought they were Early's mules.

It turned out that the Cleveland Company had a mortgage on the mules throughout 1917, and on December 6, 1917, it took from Early a deed of conveyance to the mules.

There were many special proceedings and motions had and made in the case before issue was joined before the referee; but they have faded out of view and call for no comment.

The plaintiff does not deny that, if it gave credit to Early alone throughout 1917, then the Cleveland Company is not liable therefor.

The plaintiff, however, alleges that throughout 1917 the Cleveland Company was conscious of the keep of the mules by the plaintiff, and that it acquiesced therein, that it benefited thereby, and that it is therefore liable in law to pay for the keep.

The referee did not consider those issues, but there is no testimony to sustain the allegation. The manager of the plaintiff testified that he "did not know that the Cleveland Company had anything to do with the conducting the business of Early." And another witness for the plaintiff testified that he made the sale to Early, and he thought Early was in the business for himself.

The plaintiff further alleges that the deed was executed with a fraudulent intent harbored by the grantor and grantee. If that be so, then the deed is void, although by the express words of the printed brief the plaintiff's counsel does not ask that the deed shall be set aside.

There is testimony pro and con upon the issue of fraud and the conclusion of the referee, and the court thereabout is not manifestly wrong, so that we shall sustain it.

The plaintiff further contends that the deed of December 6th is governed by section 2434 of the Code of Laws, which undertakes to regulate the sale of an entire stock in trade. But that statute expressly refers to the sale of merchandise by a merchant; and the instant transaction was not of that character.

There is no ground, therefore, upon which we...