Fryar v. Currin

• Citation: 312 S.E.2d 16,280 S.C. 241
• Decision Date: 30 January 1984
• Docket Number: No. 0057,0057
• Court: Court of Appeals of South Carolina
• Parties: Venigee C. FRYAR, Respondent, v. B.W. CURRIN, Individually and trading and d/b/a Independent Tobacco Warehouse, Appellant.

Page 16

312 S.E.2d 16

280 S.C. 241

Venigee C. FRYAR, Respondent, v. B.W. CURRIN, Individually and trading and d/b/a Independent Tobacco Warehouse, Appellant.

No. 0057.

Court of Appeals of South Carolina.

Jan. 30, 1984.

James M. Connor, Kingstree, for appellant.

Allen C. Pate, Florence, for respondent.

GOOLSBY, Judge:

This appeal principally involves an accounting for commissions received pursuant to a lease agreement between the appellant B.W. Currin and the respondent Venigee C. Fryar. The trial court held that Fryar was entitled to one-fifth of the net proceeds from the operation of the New Independent Tobacco Warehouse and that Currin was entitled to a reimbursement for only one-half of the expenditures made by him for improvements on the warehouse and for additional equipment. We reverse and remand the issue concerning Fryar's entitlement to a portion of the net profits and affirm the court's holding regarding the amount due to Currin as a reimbursement.

The issues presented on appeal are whether the trial court erred in including leaf account profits as commissions in making an award to Fryar and whether the trial court erred in failing to reimburse Currin for all funds expended by him on the warehouse improvements.

In April, 1973, Fryar and Currin entered into a lease agreement whereby Fryar leased her tobacco warehouse to Currin for a rental fee of $20,000 annually for 10 years beginning with the 1973 trading season. Under the lease, Fryar agreed to provide certain equipment and fixtures for the building and agreed to construct the warehouse floor in compliance with the regulations of the United States Grading Service. In addition, Currin agreed to pay Fryar one-fifth of all commissions he received trading and doing business as New Independent Tobacco Warehouse after deducting operating expenses.

At the time the parties entered into the lease, no warehouse existed. Fryar subsequently obtained detailed plans to build the warehouse on property adjacent to her home in Lake City. Fryar secured a construction loan and assigned the rental income of the warehouse and her share of the commissions to the lending institution to insure the loan's repayment.

During construction, the parties sought trading time from the Lake City Tobacco Board of Trade. The Board agreed to allocate selling time to the New Independent Tobacco Warehouse if, after an inspection of the warehouse on July 23, 1973, the day before the selling season was scheduled to begin, the warehouse was found to be in compliance with the standards specified in the contract. Basically, the standards required adequate lighting and sanitary facilities, reasonable ingress and egress, adequate safety of persons, and maintenance of the roof, walls, floors, and doors.

Between the years 1973 and 1979, Fryar received no commissions and brought this action for an accounting. Currin admitted that no commissions had been paid and filed a counterclaim seeking recovery of $40,315.19 advanced in 1973 for the completion of the warehouse. The case was tried before a master in equity who retired prior to submitting a report; however, the trial court, with the consent of the parties, considered the transcript of the testimony, written memoranda of law, and oral argument by counsel prior to rendering an order.

An action for accounting is equitable in nature. Byrd v. King, 245 S.C. 247, 140 S.E.2d 158 (1965). Since this is an action in equity and the master made no findings, we treat the case as one tried by a judge alone. The Court of Appeals, therefore, has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

Currin argues that the trial court erred in determining that profits from a "leaf account" were embraced within the phrase "all commissions collected" under the lease agreement. "To ascertain the intention of an instrument, resort is first to be had to its language, and if such is perfectly plain and capable of legal construction, such language determines the force and effect of the instrument." Blakeley v. Rabon, 266 S.C. 68, 221 S.E.2d 767, 769 (1976); Superior Auto Ins. Co. v. Maners, 261 S.C. 257, 199 S.E.2d 719 (1973).

Prior to trial, both attorneys stipulated that the interpretation of the contract was not an issue. Currin's counsel thought the contract "speaks for itself;" and Fryar's attorney said about the language of the contract, "[I]t's clear and ... unambiguous." The question before the court was "whether or not [Fryar] is entitled to any money under the provision of the contract which gave her one-fifth of all commissions collected after all operating expenses of the business had been deducted."

Even though counsel agreed that the lease agreement was unambiguous, they proceeded to introduce testimony as evidence on the meaning of the term "commission." Words in a contract are to be given their usual and ordinary meaning. J. Murray, Contracts § 121 (2d ed. 1974); 17 Am.Jur.2d Contracts § 251 (1964). The language contained in a contract must be given its ordinary meaning, except with technical language or where the context requires another denotation. Blakeley v. Rabon, supra.

Currin asserts that profits from a "leaf account" are entirely separate from "commissions." A leaf account is money received from a resale of tobacco purchased by a warehouse operator under a buyer's license. The warehouseman purchases the tobacco himself and will "rework" it to sell at a subsequent time. The money received from this sale is put into a leaf account. Commissions, on the other hand, are collected on all the tobacco which is sold. The money a warehouse receives from a...