Am. Wholesale Corp. v. Mauldin, (No. 11478.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MARION
• Citation: 122 S.E. 576
• Parties: AMERICAN WHOLESALE CORPORATION et al. v. MAULDIN et al.
• Docket Number: (No. 11478.)
• Decision Date: 19 April 1924

122 S.E. 576

AMERICAN WHOLESALE CORPORATION et al.
v.
MAULDIN et al.

(No. 11478.)

Supreme Court of South Carolina.

April 19, 1924.

[122 S.E. 576]

Appeal from Common Pleas Circuit Court of Hampton County; J. K. Henry, Judge.

Action by the American Wholesale Corporation and others against W. H. Mauldin and others. From a judgment of nonsuit plaintiffs appeal. Reversed, and a new trial ordered.

J. A. Mace, of Hampton, for appellants.

George Warren, of Hampton, for respondents.

MARION, J. Action for damages for breach of contract. The complaint alleged, inter alia, that the defendant W. H. Mauldin was the president and general manager and sole owner of the stock of Mauldin & Hughes, a mercantile corporation; that on or about March 15, 1922, the defendant Mauldin "entered into an agreement with J. A. Mace, as attorney for certain creditors and for the benefit of all creditors of Mauldin & Hughes, Inc., whereby, in consideration of the fact that the creditors of Mauldin & Hughes, Inc., would not close the said corporation's doors and allow them to continue the business until May 15, 1922, that the said W. H. Mauldin would pay all creditors of Mauldin & Hughes, Inc., 25 per cent. of the amount of their claims in full settlement of the same and take over the business of the said Mauldin & Hughes, Inc., in his own name; that pursuant to said agreement the creditors of Mauldin & Hughes, Inc., did not close the doors of the said corporation, but allowed them to go on with the business and refrained from bringing any proceedings to close the business and allowed them to operate until the appointment of a receiver for the said corporation on June 6, 1923. The receiver was appointed upon and after the refusal of the said W. H. Mauldin to guarantee in writing the payment to the creditors of Mauldin & Hughes, Inc., 25 per cent. in full settlement of their claims and to secure the same in any manner; that the said agreement has been duly performed on the part of the plaintiff by their attorney and other creditors of Mauldin & Hughes, Inc." The defendant by answer denied generally the material allegations of the complaint and specifically denied that he had ever agreed "to assign or transfer the said equity to any creditor, " or that he had ever agreed to become personally liable for the debts of the said corporation. What "equity" is referred to in the answer is not disclosed by the record.

On the trial, when plaintiffs undertook to prove the contract alleged in the complaint, it appearing that the agreement relied on was not in writing, upon objection by defendant, the evidence offered to establish the contract was excluded by the trial judge on the ground that "such testimony was obnoxious to the statute of frauds." As a consequence of that ruling a nonsuit was ordered. From the judgment of nonsuit the plaintiffs appeal.

1. Appellant's first contention is that the objection that the contract sought to be...