Few v. Few

• Decision Date: 16 November 1961
• Docket Number: No. 17852,17852
• Citation: 239 S.C. 321,122 S.E.2d 829
• Court: South Carolina Supreme Court
• Parties: Joseph A. FEW, Respondent, v. Benjamin F. FEW, Appellant.

Page 829

122 S.E.2d 829

239 S.C. 321

Joseph A. FEW, Respondent, v. Benjamin F. FEW, Appellant.

No. 17852.

Supreme Court of South Carolina.

Nov. 16, 1961.

Francis R. Fant, Anderson, for appellant.

Watkins, Vandiver, Freeman & Kirven, Anderson, for respondent.

MOSS, Justice.

Joseph A. Few, the respondent herein, did, on September 23, 1960, institute this action against Benjamin F. Few, the appellant herein. The complaint sets out two causes of action. The first cause of action is for damages in the sum of Ten Thousand & 00/100 ($10,000.00) Dollars for the alleged breach of an agreement arising out of the division of the property of the estate of I. P. Few. It appears that the respondent and appellant are sons of the late I. P. Few and beneficiaries under his last will and testament. This appeal is not concerned with the first cause of action.

The complaint, in the second cause of action, alleges that in 1949, a herd of black angus cattle, then owned by the appellant and Marion Few and located on their farm at Kingstree, South Carolina, was transported to the farm of the respondent in Anderson County which was better suited for cattle raising, because upon said farm was abundant pasturage. It is alleged that the respondent was to supervise, keep and care for the cattle and additions to the herd, and furnish pasturage therefor, and he was to receive for such services a one-half interest in the herd and its increase. It is further alleged that pursuant to this agreement that the respondent supervised, kept and cared for this herd of cattle and the increase and acquisitions thereto until about May 1, 1960. It is alleged that until 1953 the respondent paid all of the expenses of supervising, keeping and caring for the herd of cattle, including the expenses of breeding, feeding, labor, fertilizer, seed and veterinary service, as well as furnishing all the grazing lands, with necessary fencing and buildings incident to such cattle raising. It is further alleged that the purpose of the agreement between the respondent and the appellant was 'the breeding, raising, buying and selling of cattle for profit.'

The complaint further alleges that in April, 1953, the parties to this action purchased a farm known as the 'Brown Farm', each paying one-half of the purchase price, and such farm was to be used as additional land in the cattle operation. Because of the increase in the expense of the cattle operation, the agreement between the parties was amended by providing that the appellant was to pay one-half of the expenses of the cattle operation and the respondent was to continue to have an undivided one-half interest in all of the cattle in his care and he was to supervise, keep and care for such increased herd. It was further provided that the respondent was to develope and cultivate the Brown farm for use in the cattle operation. It is then alleged that from 1953 until 1958 the respondent furnished all of the money for the expense of the cattle operation, and after the end of each year the appellant would reimburse him for one-half of such expenses. This agreement continued until about the first of the year 1958, when the appellant, with the consent of the respondent, purchased a 'new herd', and the respondent was to continue the supervision and care of the old and new herds, and for such service was to receive a ten per cent interest in the new herd, with an annual salary of Ten Thousand & 00/100 ($10,000.00) Dollars for tending both herds.

It is further alleged that the appellant was to pay all expenses of the cattle operation, beginning January 1, 1958.

The complaint further alleges that on or about April 9, 1960, about eighty-five head of cattle, being a part of the old and a part of the new herd, was sold by the appellant for Forty-four Thousand One Hundred Nineteen & 63/100 ($44,119.63) Dollars, and the appellant has failed, after repeated demands, to pay the plaintiff any part of his share of such sale. It is further alleged that on April 28, 1960, the appellant surreptitiously removed many of the cattle from both herds from respondent's possession to the State of Virginia, and, despite demands of the respondent he has refused to disclose the whereabouts of said cattle or to pay to the respondent any part of his share or interest therein. It is then alleged that the appellant sold the remaining cattle of both herds and has refused to pay to the respondent his interest therein, or to pay the balance of his agreed salary. It is then alleged that the respondent, relying on the appellant promise to pay the expense of the cattle operation during 1958-1960, spent a considerable sum in improving some lands separately owned by the appellant, and has not paid an additional amount for money expended for the cattle operation since the first of 1960, which the appellant had agreed to pay. The complaint demands actual and punitive damages in the sum of Eighty Thousand & 00/100 ($80,000.00) Dollars for an alleged fraudulent breach of the foregoing contracts.

The appellant, by his answer, sets forth five separate defenses to the second cause of action stated in the complaint. In the second, third, fourth and fifth defenses, the appellant asserts, offsets and counterclaims against the respondent.

In the first defense, the appellant alleges the removal from Kingstree, South Carolina, to the farm of the respondent at Anderson of eight black angus cattle, along with some milk cows, under an agreement whereby the respondent was to keep and care for said cattle and any additions thereto, and as compensation for his services he was to receive a percentage of the net proceeds from the sales of said cattle, provided, at the time of such sales he was still employed in the supervision and care of the appellant's cattle and farm. It is then alleged that for the compensation heretofore stated, the respondent supervised, kept and cared for appellant's herd of cattle until 1953, at which time the 'Brown Farm' was purchased and paid for by the respondent and appellant in equal proportions as tenants in common and used in the cattle operation. It is further alleged that for:

'improvements to the buildings and silos and driveways on said farm aggregating a cost of Sixteen Thousand five hundred sixty-seven and 02/100 ($16,567.02) Dollars were paid for by this Defendant and fertilizing and liming expenses of Thirty-three Thousand Four Hundred Thirty-three and 34/100 ($33,433.34) Dollars and weed killer expense of Five Hundred Fifty-two and no/100 ($552.00) Dollars were paid for by this Defendant on this jointly owned farm and in addition to the foregoing, Defendant paid one-half (1/2) of the expenses of the cattle operation and during the period from 1953 to 1958, Plaintiff advanced funds as were necessary for the expenses of said operation and at the end of each year Defendant reimbursed Plaintiff for his portion of said expenses. The Plaintiff, however, has not reimbursed Defendant for any portion of the expenditures of Sixteen Thousand Five Hundred Sixty-seven and 02/100 ($16,567.02) Dollars, Thirty-three Thousand Four Hundred Thirty-three and 34/100 ($33,433.34) Dollars and Five Hundred Fifty-two and no/100 ($552.00) Dollars.'

It is further alleged in this defense that in 1957 and 1958 the appellant purchased and paid for a substantial number of cattle, which were the exclusive property of the appellant, and that he agreed to pay to respondent, beginning with the year 1958, a salary of Ten Thousand & 00/100 ($10,000.00) Dollars per year and one-tenth of the net proceeds from the sales of the cattle or additions thereto, provided, that at the time of the sales of such cattle the respondent was still employed by the appellant in the supervision of appellant cattle and farm, and to pay fifty per cent of the net proceeds of the sale of the old herd of cattle or additions thereto, provided, that at the time of such sales the respondent was still employed as aforesaid. In this defense the appellant further asserts that on or about April 28, 1960, there was a sale of certain of the cattle from the old and new herds and the respondent was entitled to a part of the proceeds of such sale, and that the appellant tendered to the respondent the amount to which he was entitled and he refused to accept such. The appellant then alleges that the respondent demanded a salary of Thirty-five Thousand & 00/100 ($35,000.00) Dollars per year for his work as manager of the cattle operation; and that the appellant notified the respondent that effective May 1, 1960, he was no longer in the employ of the appellant. The appellant then admits, as is alleged in the complaint, that a public sale of the remaining cattle was held at the Brown farm on July 23, 1960, over the protest of the respondent, and that the respondent was not entitled to any of the proceeds of said sale because the cattle belonged exclusively to the appellant and the respondent was not in his employ at the time of said sale. In this defense the appellant admits the performance of some services by the respondent from January 1, 1960 to May 1, 1960, but denies that the services were worth the sum alleged by the respondent. It is also admitted that the respondent did plant some grass and stolons on a tract of land owned by the appellant but denies that the material used and the services rendered were reasonably worth the sum demanded by the respondent.

For a second defense the appellant asserts that the respondent and appellant own the 'Brown Farm' as tenants in common and that he had expended thereon the total sum of Fifty Thousand Five Hundred Fifty-two & 36/100 ($50,552.36) Dollars for repairs, permanent improvements upon the buildings and for establishing permanent pastures thereon, all of which greatly increased the value of the said property, and the respondent is indebted to the appellant for one-half of said expenditure, or Twenty-five Thousand Two Hundred Sixty-one & 18/100 (...