Georgia-Carolina Gravel Co. v. Blassingame

• Decision Date: 09 June 1924
• Docket Number: 11530.
• Citation: 123 S.E. 324,129 S.C. 18
• Parties: GEORGIA-CAROLINA GRAVEL CO. v. BLASSINGAME ET AL.
• Court: South Carolina Supreme Court

123 S.E. 324

129 S.C. 18

GEORGIA-CAROLINA GRAVEL CO. v. BLASSINGAME ET AL.

No. 11530.

Supreme Court of South Carolina

June 9, 1924

Appeal from Common Pleas Circuit Court of Beaufort County; J. Henry Johnson, Judge.

Action by the Georgia-Carolina Gravel Company against J. T. Blassingame, Charles D. Luther, and others Directors of Beaufort County, and J. C. Hutson and others constituting the Highway Commission of Beaufort County. From an order sustaining a demurrer interposed by Directors of Beaufort County and members of Highway Commission of Beaufort County and an order refusing to strike out the answer of defendant Blassingame and allowing him to answer over plaintiff appeals. Affirmed.

Fraser J., dissenting.

Section 11 of the complaint follows:

(11) That it was the understanding and agreement by and between the said plaintiff and the defendant J. T. Blassingame that the plaintiff would be paid for the gravel furnished by it for the road in Beaufort county from the sum of money which Beaufort county was to pay the said defendant J. T Blassingame for the building of the said road, and the plaintiff was induced to enter into the said contract and furnish the material upon the distinct understanding that it would be so protected, and the Beaufort county highway commission and the state highway commission knew that this plaintiff was furnishing the said gravel for the said road, and the contract was let to the defendant J. T. Blassingame on the distinct understanding that he would use the said gravel, and this plaintiff alleges that it is the duty of the said highway commission to see that the said material has been paid for by the defendant J. T. Blassingame before paying over to him the funds which it has in hand for his account.

The circuit order follows:

This case was instituted in Beaufort county against J. T. Blassingame, the Beaufort county highway commission, and Beaufort county directors above named. The action is for an amount which it is claimed is due on contract by the defendant J. T. Blassingame to the plaintiff. The Beaufort county highway commission and Beaufort county directors are made parties defendant because it is alleged in the complaint that there is a fund in the hands of the highway commission due the defendant J. T. Blassingame on which the plaintiff claims to have an equitable lien.

The highway commission and Beaufort county directors demur to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action against them, for the reason that it appears upon the face of the complaint that the plaintiff has no lien, equitable or otherwise, upon the funds due the defendant Blassingame, which are alleged to be in the hands of the highway commission. The defendant Blassingame appears and answers for the purpose only of pleading to the jurisdiction of the court of common pleas of Beaufort county to try said cause of action against him, and he shows by the verified answer that he is a resident of Greenville county, and avers that if the demurrer of the Beaufort county authorities is sustained, the action against him in Beaufort county must be either dismissed or transferred, which of course is the case.

Practically the only question before me, then, is on the demurrer of Beaufort county. Unless it appears on the face of the complaint that the plaintiff has an equitable lien, as claimed upon the funds of Blassingame, in the hands of the highway commission, then there is no cause of action against the Beaufort county authorities, and their demurrer must be sustained. The allegations of the complaint, which, it is contended, show the equitable lien, are: First, that the defendant Blassingame made a bond to Beaufort county, conditioned upon the faithful carrying out of his contract, and the payment of all just claims of material men and other creditors. Second, that said Blassingame had agreed in the specifications, stipulating the material to be used on said Beaufort county highways, to use gravel from plaintiff's gravel pits, and similar gravel. Third, that defendant Blassingame had entered into an oral promise to plaintiff to pay plaintiff for the gravel procured out of the funds which the defendant Blassingame was to receive from the Beaufort county highway commission.

I do not see how the bond of the defendant Blassingame, or his contract with the highway commission, stipulating the quality of gravel to be used, can in any way create an equitable lien to the plaintiff. Of course, if the plaintiff has a just claim against Blassingame and cannot collect the same from him, the plaintiff could sue on the bond; and the fact that the plaintiff has such a remedy would rather negative the idea that a lien was created. The agreement in the specifications was only to stipulate the quality of material which should go into construction of the road. It appears to me, therefore, that the only ground upon which the plaintiff might claim an equitable lien is the alleged oral promise of the defendant Blassingame to pay for said material out of the funds, which he should receive from the Beaufort county highway commission. It is my opinion that this promise is not sufficient to constitute such a lien. The case of Christmas v. Russell, 81 U.S. (14 Wall.) 84, 20 L. Ed., page 782, seems to be conclusive of this case. There it is held:

"An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment; a covenant in the most solemn form has no greater effect. The phraseology employed is not material provided the intent to transfer is manifested. Such an intent and its execution are indispensable. The assignor must not retain any control over the fund--any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee. The transfer must be of such a character that the fund holder can safely pay, and is compellable to do so, though forbidden by the assignor. Where the transfer is of the character described, the fund holder is bound from the time of notice."

It plainly appears by the allegations in the complaint that Blassingame had full control of the fund, nor had he entered into any agreement with the plaintiff under which the plaintiff could have compelled the highway commission to turn said fund over to plaintiff.

Another case strongly in point is the case of Pratt Lumber Co. v T. H. Gill Co. (D. C.) 278 F. 783. In this case, T. H. Gill Company were contractors, who were building a highway in North Carolina. They had given a bond, the conditions of which are almost identical with the bond in question. The contractor had entered into a written agreement with certain creditors to pay them for material out of the funds received from the highway commission on a date not later than the 16th of the month. The terms of this agreement were fully as strong as that alleged in the complaint as having been made to the plaintiff in this action. The court, after a very careful review of the authorities, decided that such an agreement did...