Central Railroad & Banking Co. v. Georgia Construction & Investment Co.

• Decision Date: 21 March 1890
• Citation: 11 S.E. 192,32 S.C. 319
• Parties: CENTRAL, RAILROAD & BANKING CO. v. GEORGIA CONSTRUCTION & INVESTMENT CO. CARRELL, et al. v. SAME. FLETCHER v. SAME. NATIONAL BANK OF GREENVILLE v. SAME, PENNSYLVANIA STEEL CO., Intervenor.
• Court: South Carolina Supreme Court

11 S.E. 192

32 S.C. 319

CENTRAL, RAILROAD & BANKING CO. v. GEORGIA CONSTRUCTION & INVESTMENT CO.

CARRELL, et al. v. SAME.

FLETCHER v. SAME.

NATIONAL BANK OF GREENVILLE v. SAME, PENNSYLVANIA STEEL CO., Intervenor.

Supreme Court of South Carolina

March 21, 1890

Appeal from common pleas circuit court of Greenville county; HUDSON JUDGE.

The appeals in the above cases are from an order of Judge J. H HUDSON dated June 15, 1889, and filed June 17, 1889.

The following is a copy of the complaint in the Case of J. W Fletcher as trustee: "The plaintiff complains and alleges: (1) That at the times hereinafter mentioned the defendant was, and still is, a corporation created by and under the laws of the state of Georgia, and was then, and still is, capable of suing and being sued, and of entering into the contract hereinafter mentioned, and has property in this state, and is doing business here. (2) That between the 1st day of January, 1888, and the 24th day of September in the same year, T. K. Brown and A. B. Fortune were partners doing business under the name of Brown & Fortune. (3) That between the said dates the said defendant became and was indebted unto the said Brown & Fortune in the sum of thirty-three thousand four hundred and eighty-four dollars upon account for work and labor performed, materials furnished, and cash paid by the said Brown & Fortune for the defendant, at its special instance and request, and under a contract with defendant so to do, the said work having been performed upon, and materials and cash furnished for, the construction of the track of the Carolina, Knoxville and Western Railway Company, upon which said account the sum of sixteen thousand eight hundred and two dollars has been paid leaving a balance now due of sixteen thousand six hundred and eighty two dollars. (4) That on the said 24th day of September, 1888, the said Brown & Fortune assigned transferred, conveyed, and set over to the plaintiff, as trustee, all of their property of every kind whatsoever, including the said claim against the said defendant, in trust nevertheless to collect all claims, and convert all the property into money, and to pay over the proceeds thereof to the creditors of the said Brown & Fortune in the manner set forth in the said assignment; that the plaintiff accepted said trust, and immediately entered upon the discharge thereof; that no part of the said balance of sixteen thousand six hundred and eighty-two dollars has been paid, and the plaintiff, as trustee as aforesaid, is still the owner thereof. Wherefore the plaintiff demands judgment against the said defendant for sixteen thousand six hundred and eighty-two dollars and costs.

The summons was issued on October 13, 1888. On the same day the plaintiff obtained from the clerk of the court a warrant of attachment in the usual form, against the property of the defendant, upon an affidavit of which the following is a copy: "J. W. Fletcher, the plaintiff above named, being duly sworn, says: (1) That the above named defendant is justly and truly indebted to the deponent, as trustee under an assignment made to him by Brown & Fortune, a firm or copartnership lately composed of T. K. Brown and A. B. Fortune, dated the 24th day of September, 1888, for the benefit of their creditors, in the sum of sixteen thousand six hundred and eighty-two dollars; and deponent believes that he is justly entitled to recover said sum. (2) That the defendant is a foreign corporation created under the laws of the state of Georgia, having its place of business in Augusta, in that state. (3) That the defendant has property within this state consisting of a railway track, being part of a track built for the Carolina, Knoxville and Western Railway Company, in the county of Greenville, and also a lot of steel rails, spikes, cross-ties, and sawed lumber, likewise in said county, and a large lot of steel rails, spikes, and other property at Port Royal, in said state, or in course of transportation therefrom. (4) That the cause of action for which defendant is indebted to the plaintiff is for grading or graduation, masonry work, irregular work, bridge-work, and material for bridge over the Tennessee river, stone-work in quarries, building on said works, laying track and track timber, cross-ties, derrick-boats, horse-power flat-boats, derrick and fixtures, and for quarries, all of which work was done and materials furnished by said Brown & Fortune for the defendant, under contract with it, on the Carolina, Knoxville and Western Railway Company; the amount being a balance upon account and assigned by the said Brown & Fortune to deponent as trustee for the benefit of creditors. (5) That the plaintiff has commenced an action in this court by issuing the summons hereto annexed against said defendant upon the cause of action above stated. Sworn to and subscribed before me this 13 of October, 1888. J. W. FLETCHER, Trustee for Brown & Fortune. JOHN R. BELLINGER, Not. Pub."

The following is a copy of the complaint in the Case of Correll & Emonson: "The complaint of the above-named plaintiffs respectfully shows to the court: (1) That the plaintiffs J. B. Correll and A. Emonson are partners doing business under the firm name of Correll & Emonson. (2) That the defendant is a corporation duly created by and under the laws of the state of Georgia, owning property in this state and county. (3) That at the times hereinafter named the defendant corporation was engaged in constructing that part of the Carolina, Knoxville and Western Railway lying between the city of Greenville, in the state of South Carolina, and the city of Knoxville, in the state of Tennessee. (4) That on the ___ day of March, 1888, the defendant, through its proper officers, entered into a contract with these plaintiffs whereby they employed these plaintiffs to do certain work in grading said railway at certain stipulated prices, and these plaintiffs thereby bound themselves to do said work at the prices agreed on. (5) That in pursuance of said contract these plaintiffs and their servants have done a large amount of work in the grading of said railway, and there remains due them on account thereof, after deducting all payments, and upon the estimates of the engineers of the said defendant, the sum of twenty-nine thousand nine hundred and seven dollars, a bill of particulars of which is hereto attached as a part of this complaint. (6) That no part of said sum of twenty-nine thousand nine hundred and seven dollars has been paid, and the defendant is justly indebted to the plaintiffs in that sum. Wherefore the plaintiffs demand judgment against the defendant for the said sum of twenty-nine thousand nine hundred and seven dollars and costs.

"BILL OF PARTICULARS.

Amount due as per estimate of engineer .. $14,240 86

Expenses moving ........................... 2,000 00

Shanties, etc................................ 500 00

Expenses moving to S. C...................... 500 00

Work in N.C. since estimates ............. 2,500 00

Work in S.C. since estimates ............. 1,500 00

Other items not included above ........... 8,667 00"

COMPLAINT VERIFIED.

The summons was issued on November 17, 1888. At the same time the plaintiffs procured from the clerk of the court a warrant of attachment, of the usual form, upon the following affidavit: "Before me, personally, comes A. Emonson, one of the above-named plaintiffs, who, being duly sworn, deposes and says that he is a member of the firm of Correll & Emonson, plaintiffs above named, which said firm is composed of deponent and J. B. Correll. Deponent further says that plaintiffs have a causes of action against the defendant for the sum of twenty-nine thousand nine hundred and seven dollars for work and labor performed, and materials furnished, for, in behalf of, and at the request of, the defendant, and has instituted suit therefor in this court. Deponent further says that defendant is a foreign corporation created by and under the laws of the state of Georgia, but has property in this state. Sworn to and subscribed before me this November 16, 1888. A. EMONSON. G. G. WELLS, Not. Pub. L. S."

The complaint in the Case of the Central Railroad & Banking Company is as follows: "The complaint of the above-named plaintiff respectfully shows to the court: (1) That the plaintiff is a corporation duly chartered and created under the laws of the state of Georgia as the Central Railroad and Banking Company of Georgia. (2) That the defendant is also a corporation duly chartered and created under the laws of the state of Georgia as the Georgia Construction and Investment Company. (3) That on the 19th day of May, 1888, the defendant made and delivered to the plaintiff its promissory note in writing, whereby it promised to pay to the plaintiff herein four months after the date thereof, the sum of six thousand and five hundred dollars, for value received. (4) That R. P. Sibley was at the date of the said note, and still is, president of the said defendant company. (5) That the said note has long since become due and unpaid, and no part thereof has been paid. (6) That the plaintiff herein is the legal owner and holder of said note, and there is due and remaining unpaid to the plaintiff the sum of six thousand five hundred dollars, with interest on the same from the 22d day of October, 1888. Wherefore the plaintiff prays judgment against the defendant for the sum of six thousand and five hundred dollars principal and interest from the 22d day of October, 1888, and the costs of this action." The summons was issued on December 15, 1888; and on the same day the plaintiff herein procured from the clerk of the court a warrant of attachment, of the usual form, against the property of the defendant, upon the following...