Coleman v. Coleman

• Decision Date: 05 March 1946
• Docket Number: 15808.
• Parties: COLEMAN v. COLEMAN.
• Court: South Carolina Supreme Court

37 S.E.2d 305

208 S.C. 103

COLEMAN v. COLEMAN.

No. 15808.

Supreme Court of South Carolina

March 5, 1946

Appeal from Common Pleas Circuit Court of Florence County; L. D Lide, Judge.

Action by W. A. Coleman against Mosely C. Coleman to recover amount of loans allegedly made by the plaintiff to the defendant. The defendant filed two counterclaims. From the judgment, the defendant appeals.

The order of Judge Lide follows:

This is a suit for the recovery of Sixty-eight Thousand, Seven Hundred and Forty ($68,740) Dollars, exclusive of interest and attorney's fees, which the plaintiff alleges in his complaint is the amount of loans made by him to the defendant. The defendant has answered, denying liability by reason of alleged offsets and payments and interposing two counterclaims. The matters before me are motions on the part of the plaintiff to require the defendant to make his answer more certain and definite, for an order for the examination of the defendant before trial, and for an order of reference.

The first cause of action stated in the complaint is upon a note for the principal sum of One Thousand ($1,000) Dollars. The second cause of action is upon another note in the principal sum of Four Thousand ($4,000) Dollars. The third cause of action is founded on the defendant's check to the order of the plaintiff for the sum of Eleven Thousand, Four Hundred and Thirty ($11,430) Dollars. The fourth cause of action is founded on the defendant's check to the order of the plaintiff for the sum of Fifty-two Thousand, Three Hundred and Ten ($52,310) Dollars. Each of these instruments is alleged by the plaintiff to represent a loan made by him to the defendant. The plaintiff alleges that no part of such loans has been repaid, and judgment is demanded for the principal sum of Sixty-eight Thousand, Seven Hundred and Forty ($68,740) Dollars, 'together with interest as may be allowed by law, and with reasonable attorney's fees on the amounts evidenced by the two notes * * *.'

Thus, taking the complaint alone, the action is one at law with no features of equitable cognizance that would support a motion for an order of reference.

The time for answering the complaint was extended by plaintiff's counsel. After the lapse of the statutory time to plead, but before the defendant answered plaintiff's counsel docketed the case on Calendar No. 1 for trial by jury. Accordingly, in connection with the motion for an order of reference, the plaintiff further moves that the cause be stricken from Calendar No. 1.

The answer of the defendant admits the execution of the four instruments described in the complaint. As to the first two causes of action, the answer further alleges that the defendant denies that he is 'due the plaintiff any sum upon the said note for the reason that the amount of the said note is offset by indebtedness of the plaintiff to the defendant hereinafter more fully described.'

As to the third cause of action the defendant makes a similar denial as to any amount being due the plaintiff on the check therein described, 'for the reason that the same is offset by indebtedness of the plaintiff to the defendant.' As to the fourth cause of action the defendant admits that he borrowed from the plaintiff the sum of Fifty-two Thousand, Three Hundred and Ten ($52,310) Dollars, and as evidence of the same gave his check as alleged in the complaint; he however alleges 'that he has paid thereon to the plaintiff the sum of Fifty-one Thousand, Three Hundred and Thirty-five ($51,335) Dollars, and that, by reason of the indebtedness due the defendant by the plaintiff hereinafter described, there is no balance due upon the loan set up in this cause of action.'

It will thus be perceived that the defenses thus far stated constitute a denial by the defendant of any indebtedness to the plaintiff by reason of the 'offsets' claimed by him and of the payment by him to the plaintiff of the sum of Fifty-one Thousand, Three Hundred and Thirty-five ($51,335) Dollars.

The answer then proceeds to set up two further defenses 'by way of setoff and counterclaim.' In the first of these defenses the defendant alleges that he, with his brother and the plaintiff, entered into a partnership with the plaintiff in January, 1939, and that under the terms of the partnership agreement the defendant was to receive Fifteen (15%) per cent. of the net profits of the partnership. He alleges that this partnership is still in existence and that his share of the profits thereof for the years 1939-1944, inclusive, is Fourteen Thousand, Two Hundred Seventy-seven and 94/100 ($14,277.94) Dollars; that an additional amount will be due the defendant by reason of profits made by the partnership during the year 1945. He estimates the amount of his share of the 1945 profits, as of the time of his answer, as a sum in excess of Twenty-eight Hundred ($2,800) Dollars. He further alleges that all of the aforementioned profits are in the hands of the plaintiff; that he left such profits with the plaintiff at the plaintiff's request, and upon the agreement of the plaintiff that he would pay such profits to the defendant any time he desired; that he has demanded payment by the plaintiff of such profits, and that such demand has not been complied with.

In the second of such defenses by way of set-off and counterclaim the defendant sets up an account against the plaintiff in the amount of Twenty-nine Hundred and Twelve ($2,912) Dollars, representing services performed and expenses incurred by him in assisting the plaintiff in dealing with the federal tax authorities in relation to a deficiency income tax assessment made against the plaintiff. He alleges that the plaintiff solicited his assistance, agreeing to pay him for all expenses incurred by him and a reasonable amount for the services performed by him. He attaches to his answer what purports to be an itemized statement of the disbursements made and the services performed by him. He further alleges that on several occasions he demanded payment of this account from the plaintiff and that the plaintiff has failed to make payment, but he does not allege that in connection with such demands he stated any account to the plaintiff. The language of his pleading is 'that on several occasions (he) demanded payment from the plaintiff for his expenses, services and time in connection with his work on the said tax assessment.'

In due time the plaintiff replied to the counterclaims of the defendant. In his amended reply the plaintiff denies the existence of the partnership alleged by the defendant; he alleges that all of his business in which the defendant claims a partnership interest is strictly the plaintiff's personal business; that when consideration was given a few years ago to the question of reducing his income tax liability, the plaintiff conferred with the defendant and his other children on the subject and concluded to set up a partnership covering his principal operations, in which the defendant would acquire a fifteen (15%) per cent. interest; that however said partnership was never established; that the plaintiff had never made any gift of any partnership interest to the defendant and had never received any compensation from the defendant for such an interest; that in no aspect was the partnership ever consummated; that the defendant is a son of the plaintiff, and that prior to the disputes which brought about the present action, he had the unlimited confidence of the plaintiff, and that whatever records may be in existence relating to the alleged partnership are records made by the defendant. It is then alleged that if as the result of an investigation of all of the facts relating to the alleged partnership, it should be adjudicated that the defendant has the status of a partner and is entitled to fifteen (15%) per cent. of the partnership profits, the defendant should be called upon to pay to the plaintiff the value of a corresponding interest in the partnership assets, this sum being greatly in excess of the amount of alleged partnership profits claimed by the defendant. And the amended reply concludes on this subject with the allegation that the plaintiff is without adequate information on the subject, because of his complete reliance upon the defendant in the past in the handling of the plaintiff's affairs and records.

In connection with the defendant's purpose, as disclosed by his defense to the fourth cause of action, to rely upon remittances made by him to the plaintiff, the amended reply sets forth that the defendant has accumulated large amounts of money and property, and has established various businesses out of funds provided by the plaintiff and funds obtained by the defendant by withdrawals from the plaintiff's business; that in addition to such sums the defendant frequently called upon the plaintiff for large sums of money needed by the former in the operation of his business; that these sums aggregate some hundreds of thousands of dollars, 'a considerable part of which was returned by the defendant to the plaintiff, without interest in most instances,' the implication being that the remittances upon which the plaintiff believes the defendant will rely to establish his allegation of payment will be remittances involved in the repayment of the hundreds of thousands of dollars of loans above referred to.

The amended reply further alleges that until recently the defendant lived in the home of the plaintiff, contributing nothing to the maintenance thereof and paying no board 'that in these and other ways the relationship of the plaintiff and the defendant as father and son was evidenced, and that until the recent repudiation by the defendant to the plaintiff of the liabilities set forth in the...