Dickson's Drug Store v. Davis

• Decision Date: 08 May 1941
• Docket Number: 15258.
• Citation: 15 S.E.2d 332,197 S.C. 294
• Parties: DICKSON'S DRUG STORE, INC., v. DAVIS.
• Court: South Carolina Supreme Court

15 S.E.2d 332

197 S.C. 294

DICKSON'S DRUG STORE, INC., v. DAVIS.

No. 15258.

Supreme Court of South Carolina

May 8, 1941

Charlton DuRant, of Manning, for appellant.

Davis & McFaddin, of Manning, for respondent.

BONHAM Chief Justice.

On the call of this case for trial, plaintiff's counsel moved to strike from defendant's answer paragraphs I, II, III, IV, V, VI, and VII, on the grounds that the allegations thereof were irrelevant and redundant. The motion was granted. The order further directed that the words in the general denial "except such as may be hereinafter expressly admitted or explained, and alleges on information and belief," be struck, "so as to make the general denial read properly."

The respondent appeals from this order upon two exceptions alleging error as follows:

"1. The plaintiff-respondent having inserted allegations as to the history and background of the relations of the parties as a necessary part of its cause of action, the appellant should have been allowed to allege facts as to a different history and background.

"2. The complaint alleged a contract under which S. L. Davis and W. Gilmore Simms were to each receive a 25% interest at some future time for their labors, and that the incorporation was a fulfillment of this contract. This alleged, in legal effect, the ending of one mutual account and the starting of a new one and all prior items are barred, but if the Court ruled otherwise appellant should then be in a position to prove the partnership relation by other evidence, and that S L. Davis got 3/8 interest in the new corporation instead of 1/4--and striking out these allegations in the answer was error."

It becomes necessary, for a clear understanding of the issues to scan carefully the pleadings. Each of the parties criticizes the pleadings of the other, and, with the kindest sentiments, we venture to say that both the complaint and the answer are open to the charge of being what the code writers denominate "loose pleading." The Code, Section 456, provides that the complaint shall contain "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition." The complaint in this action after setting out the allegations that the plaintiff is a corporation and the defendant is the duly appointed and qualified administratrix of the estate of S. L. Davis, proceeds with a good deal of detail to set out that Dr. George L. Dickson was the owner of a drug store; that in 1925 he made a contract with S. L. Davis and W. G. Simms by which he gave them each a one-fourth interest "in said business upon their taking charge of said business and paying off an indebtedness of $9,000.00." S. L. Davis was made manager and bookkeeper at a salary of $150 per month; that in November, 1931, the business was converted into a corporation with Dickson, Davis and Simms, the stockholders, and that the corporation acquired and took over the assets and accounts and assumed the liabilities and obligations of George L. Dickson; the corporation continued the business under the sole management and control of S. L. Davis upon a monthly salary of $150 per month to be paid him. That between January 1, 1925, and March 23, 1939, the said S. L. Davis, while so managing and keeping the books of the said firm, became indebted to the said G. L. Dickson and the said corporation for goods, wares and merchandise furnished him, and cash, and personal bills paid by G. L. Dickson and said corporation for and in behalf of said S. L. Davis and otherwise in the sum of $34,549.26, no part of which has ever been paid, "except the sum of $25,500.00, an itemized statement of the mutual, open and current account in which there have been reciprocal demands between said S. L. Davis and plaintiff and its predecessor, G. L. Dickson, being hereto attached as a part of this complaint and marked Exhibit 'A'."

That statement does not appear in the transcript of record.

Respondent in its brief states that appellant is complaining because the trial Judge did not transfer the case to Calendar 2, and refer it to a referee when there was no such motion by appellant and nothing of the kind suggested to the Court below.

After the Court had struck out practically the whole of defendant's answer, we do not see upon what ground she could have made such a motion.

The answer, following the example of the complaint in the prolixity of its detail, alleges: That a partnership was formed between G. L. Dickson and S. L. Davis, and afterwards W. G. Simms was admitted. In 1931, a corporation was formed with a capital stock of $5,000, with a...