Bohumir Kryl Symphony Band Inc v. Allen Univ., 15189

• Decision Date: 01 March 1940
• Docket Number: No. 15189,15189
• Citation: 12 S.E.2d 712
• Court: South Carolina Supreme Court
• Parties: BOHUMIR KRYL SYMPHONY BAND, Inc., v. ALLEN UNIVERSITY.

12 S.E.2d 712

BOHUMIR KRYL SYMPHONY BAND, Inc.,

v.ALLEN UNIVERSITY.

No. 15189

Supreme Court of South Carolina.

Dee. 31, 1940.

.

Appeal from County Court of Richland County; A. W. Holman, Judge.

Action by Bohumir Kryl Symphony Band, Inc., against Allen University for breach of contract. From a judgment for plaintiff notwithstanding the verdict, defendant appeals.

Reversed.

Cole L. Blease and Blease Ellison, both of Columbia, for appellant.

Harold C. Seigler, of Columbia, for respondent.

BAKER, Justice.

This is an action for the breach of a contract, alleged in the complaint of respondent to have been entered into with it by appellant, Allen University, in the language following: "3. That heretofore on the 19th day of May, 1938, at Columbia, S. C, for and in consideration of the sum of Seven Hundred and Fifty ($750.00) Dollars, which the defendant agreed to pay to the plaintiff, the said parties entered into a written contract, wherein and whereby the plaintiff was engaged by the defendant to give two concerts on Saturday, November 5, 1938, which performances were to be given by the plaintiff under the terms and conditions as set forth in the original contract, all of which will more fully appear by reference thereto."

The appellant in its answer qualifiedly admitted the above.paragraph of the complaint, said admission reading: "3. Ad-mits Paragraph three of said complaint, in that the president of said defendant institution entered into a contract with the plaintiff, on May 19, 1938, but that entering into said contract the said president exceeded his authority, and that the said acts are 'ultra vires'; * * *."

Paragraph 8 of the answer denied each and every allegation of the complaint not specifically admitted and demanded strict proof thereof.

Issue being thus joined, the case came on for trial, and in the course thereof, respondent (plaintiff) offered in evidence, without objection on the part of appellant (defendant), a contract of the purport of the one described in the complaint between respondent and one Eugene H. McGill; testimony that at the time of the execution of the contract, McGill was the President of Allen University; and letters to respondent from McGill on stationery of appellant, signed by him as President, in which he undertook to cancel the contract which he had signed.

At the conclusion of respondent's testimony, appellant made a motion for a nonsuit on the ground "that there are no statements as to Allen University being a party to the contract. It was signed by Eugene H. McGill individually and in no way hag the University had any part or anything whatsoever to do with the contract. We contend that the action should have been brought against McGill individually and not against Allen University." The ruling of the trial Judge was: "I think these will be enough to take the case to the jury. I think there is enough in the correspondence to take it on."

There is no appeal from the refusal of the trial Judge to grant the motion for nonsuit. Appellant's exception 3 alleges error in not directing a verdict in its (defendant's) favor, but the record does not disclose that such a motion was made, and therefore will not be considered.

The appellant (defendant) then proceeded with its testimony, all of which was finally stricken out except the charter of appellant, and the testimony reported immediately hereafter.

"Q. Will you take this charter and tell us what are the duties of the president from the charter? A. In Section 4 of this charter we have this: 'That the said Board of Trustees of said Allen Universi ty shall have power to elect a faculty, comprising professors, tutors and instructors, and assign their duties, and also power to remove in their discretion; to prescribe a course of study or curriculum to confer degrees and diplomas, and such other honorary distinctions of similar grade.' And Section 5, 'That the faculty proper (composed of professors holding chairs) shall also have auxiliary powers, by and with the consent of the Board of Trustees, to prescribe a course of study, frame rules and regulations for discipline, and enforce all needful requirements for the educational interest of the said Allen Universi-

ty.'

"Q. Do you find any set rules in that charter as to the power of the President? A. No, sir; but the rule here is the rule of the faculty and the president is a member of the faculty. He is a member of the faculty like anybody else only he is chairman of the faculty.

"Q. The faculty of which the president was a part are ruled by the board of trustees? A. Yes, sir.

"Q. What has become of Dr. McGill, former president of the University? A. Dr. McGill is deceased.

"Q. Can you tell us what time he died, do you recall? A. It seems to me it must have been either in February or March of 1932."

In reply respondent (plaintiff), without objection by appellant, offered testimony that other concert bands, orchestras and singers had given performances at Allen University prior to the date of the contract involved in the instant case.

At the conclusion of all of the testimony, respondent moved for a directed verdict, the apposite grounds being: "That the defendant (appellant) admits the execution of the contract and admits by his (its) pleadings the breach of it and sets up the defense only that the acts of the president were ultra vires * * *;" " * * * that the only reasonable inference that can be drawn from the testimony is that the acts of the president in the execution of this contract were under the authority that he had; that there was no evidence of the authority or lack of authority of the president to execute this contract and that by the pleadings and the lack of testimony we are entitled to a directed verdict for the amount of damages which we have proven." (Italics added.)

As usual, there was discussion of the motion by the...