Chapman v. Lipscomb
| Decision Date | 28 October 1882 |
| Citation | 18 S.C. 222 |
| Parties | CHAPMAN v. LIPSCOMB. |
| Court | South Carolina Supreme Court |
1. Exceptions to a decree are required by the fifth rule of this court to state specifically the errors alleged; an allegation of error by mere reference to exceptions sustained or overruled by the Circuit judge, is insufficient.
2. Where a master's report fails to state its conclusions of law and fact separately, the proper remedy is a motion to recommit; it furnishes no ground for an exception.
3. Where an action at law, as, e. g. , for the recovery of personal property and damages for its detention, is referred by consent to a master to determine all the issues whose findings of fact are adopted by the Circuit judge, this court has no power to review such findings.
4. Nor it is otherwise where the answer sets up an equitable defense, for the complaint determines the character of the action. In such case the legal and equitable issues must be tried, each by their appropriate tribunal; but here the exceptions as to findings of fact relate only to the legal issues, and cannot therefore be considered.
5. The code of procedure has abolished the difference in forms of action as they heretofore existed in the two jurisdictions but has made no change as to causes of action, or in the marked distinction which formerly existed between law and equity.
6. The true test of a partnership is the existence of a communion of profits and losses.
7. A contract whereby one party is to furnish a certain number of laborers to work in a brickyard, and to receive therefor one-half of the bricks made and to have the option of purchasing a fixed number at a stated price, the other party to make the brick and defray all other expenses, does not constitute a partnership.
8. And the party making the brick could sell to a stranger his half of the brick on hand, and the purchaser would be entitled to the possession of the property purchased, without regard to his vendor's indebtedness under the contract.
9. Exceptions taken at the reference to the admission of incompetent testimony by the master, not considered, it not appearing that the Circuit judge made any ruling upon them and no exceptions upon these points having been taken to the Circuit decree.[a1]
Before COTHRAN, J., Richland, November, 1881.
This was an action by W. W. Chapman against T. J. Lipscomb superintendent of the South Carolina penitentiary, commenced in August, 1879. The nature of the action and the pleadings are stated in the opinion of this court.
By consent of counsel, the cause was " referred to N. B. Barnwell, Esq., master for Richland county, to take testimony and determine all issues of fact and law in the above stated cause, and that he report his actings and doings in said cause with all convenient speed to this court." The master reported as follows:
This cause arises upon the following facts: On August 4th, 1879, one J. A. Bondurant sold and delivered to the plaintiff, for a valuable consideration (to wit, the right to manufacture and sell in certain counties in Georgia a certain article, known as a " cotton planter," the patent right to which was owned by the said plaintiff), the articles mentioned in the complaint, the said articles being then in the custody and control of the said J. A. Bondurant, who was, at that time, engaged in the manufacture of brick, upon a brickyard held by the defendant, under a lease from the Columbia Water Power Company, the said defendant having entered into a contract with the said J. A. Bondurant and one J. P. Bondurant, the father of the said J. A. Bondurant, the terms of which are set out in the answer in this case.
Being satisfied that this was a bona fide sale for value by the said J. A. Bondurant, acting for himself and the said J. P. Bondurant, to the said plaintiff, and there being no satisfactory proof before me of any fraud and collusion between the parties, it only remains to inquire whether, under the terms of the contract, the said J. A. & J. P. Bondurant had such right and title in the property sold as to enable them to give a good title to the plaintiff, without the knowledge and consent of the defendant thereto, it being admitted that the defendant knew nothing of the transaction between the plaintiff and the said J. A. Bondurant.
It is claimed by the defendant, that under the terms of the contract between himself and J. A. & J. P. Bondurant, that he, the defendant, became a partner with the said J. A. & J. P. Bondurant in the manufacture of the said brick, and that, until a division of the brick, the same remained partnership assets, and that the plaintiff, being fully informed, as it is admitted he was, of the terms of the contract, could acquire no right to the property until there had been an accounting between the defendant and the said J. A. & J. P. Bondurant. Under this view of the case on the part of the defendant, the defendant at first refused to give up any part of the property purchased by the plaintiff; subsequently, and after suit brought, the defendant permitted the plaintiff to take all of the articles except the 171,000 brick, being the one-half of a kiln of brick of 342,000 brick then upon the premises, the said brick having been made under the contract hereinbefore referred to. All the brick the defendant has taken possession of, and made such use of them as he thought proper, to wit, has used the whole kiln for the purposes of the South Carolina penitentiary.
Even if, under the terms of the contract, it could be held that a partnership existed, I am satisfied that the said J. A. & J. P. Bondurant had full authority and power to sell the one-half of the said kiln, without the knowledge or consent of the said defendant, to such person and for such price as seemed best to themselves. I am the more confirmed that this is the correct interpretation to be given to this contract, from the fact that this seems to have been the view held by the parties themselves in executing this contract, to be inferred from the fact that the said J. A. Bondurant did sell in such manner as he saw fit, without consultation with the said defendant, a large quantity of brick, to wit, more than 100,000, to such persons and at such prices as seemed proper to the said J. A. Bondurant, all of which was well known to the defendant, who only seemed to have taken notice of these sales to the extent of cautioning the said J. A. Bondurant against failing to be able to furnish the penitentiary with the amount of brick expected. But I am satisfied that the terms of this contract constituted no partnership between the parties, and that the remedy of the defendant is not against the property in dispute in any way whatever, but must be upon the contract against the parties thereto. Under this view, the right of the plaintiff to this property, without let or hindrance, accrued absolutely on August 4th, 1879, and it was the duty of the defendant to have peaceably permitted him to take possession thereof.
The value of the brick I find to be $6 per thousand. The damages sustained by the plaintiff I assess at $250.
I find, as a conclusion of law, that the plaintiff is entitled to the possession of the property sued for, and if the same be not delivered, for the value thereof, to wit, the sum of $1,026, and for the sum of $250, his damages, and for the costs of this action.
All of which is respectfully submitted.
March 31st, 1880.
Master .
The following was the contract between the defendant and the Bondurants:
THE STATE OF SOUTH CAROLINA, county of Richland-This indenture in duplicate, had, made and agreed upon, this 13th day of February, 1879; by and between T. J. Lipscomb, superintendent of the South Carolina penitentiary, of the first part, and J. A. & J. P. Bondurant, of Augusta, Ga., of the second part, witnesseth:
First . That the party of the first part, in consideration of the payment to him of a certain proportional share of bricks hereinafter stipulated to be paid, and of the covenants hereinafter entered into by the party of the second part, doth hereby agree to furnish to said party of the second part fifty able-bodied convicts, for the term of seven months, daily, (Sundays excepted,) or their labor for 9,100 days in the aggregate in each year. The labor of said convicts to be used for the purpose of brick making on the Kinsler (or Green) brickyard tract, in Richland county.
Second . Said convicts, and a sufficient guard to guard them, to be furnished free of cost to said party of the second part. The feeding and clothing of said convicts, and the whole cost of maintaining the guard, to be defrayed by the party of the first part.
Third . The said party of the first part also agrees to assume the payment to the owner of the yard of the royalty of 100 bricks for every thousand bricks made.
Fourth . That the party of the second part agree to make three million (3,000,000) of bricks in each and every year during the terms of this contract, using only 9,100 days' labor of convicts in each year, and to turn over to the party of the first part at the brickyard, one-half of all the bricks made. Said bricks to be of average quality of the bricks burned in each kiln.
Fifth . That the said party of the second part agrees to sell to said party of the first part 1,000,000 of bricks in the year 1879, if he needs them for the use of the South Carolina penitentiary, at the rate of five dollars ($5) per thousand on the yard, or six dollars ($6) per thousand delivered at the penitentiary.
Sixth . That the said party of the second part agrees to assume all other expenses consequent upon the manufacture of the brick, except the convict labor, guard, and royalty to the owner of the...
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