Cherry v. Thomasson

Decision Date09 July 1981
Docket NumberNo. 21517,21517
CourtSouth Carolina Supreme Court
PartiesW. P. CHERRY, Jr., Respondent, v. Broadus L. THOMASSON, Appellant.

T. Hugh Simrill of Simrill & Fewster and David A. White of Roddey, Carpenter & White, Rock Hill, for appellant.

John C. Hayes of Hayes, Brunson & Gatlin, Rock Hill, for respondent.

HARWELL, Justice:

Broadus L. Thomasson appeals the decision of the trial judge which makes him accountable to his partner, respondent, W. P. Cherry, Jr., for partnership losses and for certain benefits he received out of the partnership. We affirm but modify as to one item of account.

This action was one in equity tried by the judge without a reference. We will accordingly find facts as we determine them to exist by a preponderance of the evidence. Brown v. State Farm Mutual Insurance Company, S.C., 269 S.E.2d 769 (1980). This does not require us to disregard the findings below nor ignore the better vantage point the trial judge occupies in determining witness credibility. The burden is upon the appellant to convince this Court that the trial judge erred in his findings of fact. DuBose v. DuBose, 259 S.C. 418, 192 S.E.2d 329 (1972); Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171 (1961).

In 1970, Cherry and Thomasson were engaged in various construction projects in York County when they agreed to apply as a partnership for a Federal Housing Authority guarantee of a loan for construction of a large apartment complex. This "Cherry Grove Apartments" project was approved by the FHA and was to be owned by Cherry Grove Apartments, a partnership of Cherry and Thomasson. The partners, however, sold a 56% interest in the partnership to outside investors for $64,000. Cherry and Thomasson received $28,000; $36,000 was withheld pending satisfactory completion of the project.

Cherry and Thomasson formally entered into a partnership known as Cherry-Thomasson whose stated purpose was to construct and manage Cherry Grove Apartments. A contract was then entered between Cherry-Thomasson and Cherry Grove Apartments which made Cherry-Thomasson general contractor for the apartment project. Cherry and Thomasson thus became equally liable, absent agreement to the contrary, for completion of the project.

The project was completed at a cost which was some $66,000 above the monies available. Cherry, as the actual builder, had posted $90,000 performance bond on the project and so took the initiative in covering the partnership loss. Of the $66,000 loss, $36,000 was covered by the limited partnership monies held in escrow. Cherry raised the additional monies. The trial judge ordered Thomasson to reimburse Cherry for $15,000, one half of the monies raised.

Thomasson contends that shortly after construction on the project began, a meeting among Cherry, the Cherry Grove Apartments accountant and himself took place and it was agreed that he would be relieved of all liability for the project's completion, including contribution towards any losses.

Having thoroughly reviewed the record, we conclude that Thomasson has failed to prove this allegation by a preponderance of the evidence and is therefore liable for one half of the unsecured loss as ordered by the trial judge. It appears that the partners continued to discharge partnership responsibilities subsequent to the meeting. Cherry denied that he understood that he was to be solely liable for partnership losses. No one present at the meeting came forward at trial to corroborate Thomasson's allegations. We find that Thomasson continued to remain subject to his partnership responsibilities and any...

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114 cases
  • Lanier v. Lanier, 3966.
    • United States
    • United States State Supreme Court of South Carolina
    • March 21, 2005
    ...witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981); Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999); see also Dorchester County Dep't of Soc. Servs. v. Mi......
  • Hunnicutt v. Hunnicutt
    • United States
    • Court of Appeals of South Carolina
    • January 12, 2006
    ...... evaluate their credibility and assign comparative weight to. their testimony. Cherry v. Thomasson , 276 S.C. 524,. 525, 280 S.E.2d 541, 541 (1981); Miles v. Miles , 355. ......
  • Calhoun v. Calhoun
    • United States
    • Court of Appeals of South Carolina
    • February 17, 1998
    ...that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981). I. Alimony and Attorney Fees A. Pendente Lite The first issue concerns the wife's request for pendente lite alimony a......
  • Shirley v. Shirley
    • United States
    • Court of Appeals of South Carolina
    • July 31, 2000
    ...was in a better position to evaluate their credibility and assign comparative weight to their testimonies. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981). Because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to tri......
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