Georgian Co. v. Britton

• Decision Date: 06 September 1927
• Docket Number: 12266.
• Citation: 139 S.E. 217,141 S.C. 136
• Parties: GEORGIAN CO. v. BRITTON et al.
• Court: South Carolina Supreme Court

139 S.E. 217

141 S.C. 136

GEORGIAN CO. v. BRITTON et al.

No. 12266.

Supreme Court of South Carolina

September 6, 1927

Appeal from Circuit Court of Charleston County; Edward McIver Judge.

Action by the Georgian Company against W. S. Britton and others. From an order denying plaintiff's motion to dismiss certain counterclaims, it appeals, and from the judgment under a decree for plaintiff on its claim, defendant John P Grace appeals. Reversed and remanded, for a new trial before a jury.

Middleton & Middleton, of Charleston, for appellants.

Logan & Grace, John I. Cosgrove, and A. L. Hamer, all of Charleston for respondents.

BLEASE J.

This cause arises out of a contract of agency entered into between the Georgian Company, of Georgia, as principal, and Britton and Feaster, as agents, and Grace and Rabon, as their sureties. The contract contemplated the sale of certain newspapers in the city of Charleston and the surrounding territory by Britton and Feaster, as agents for the Georgian Company.

The complaint of the Georgian Company, plaintiff in the action alleges a breach of the contract, in that the defendants Britton and Feaster failed to pay for certain papers delivered to them.

The answer of the defendants Britton and Feaster contains a general denial and three counterclaims that will hereinafter be mentioned.

The sureties Grace and Rabon are joined as defendants in the action. The defendant Grace filed a demurrer on the ground that there was a misjoinder of parties and causes of action. This demurrer was overruled by Judge Townsend, who presided over the October term of court of common pleas of Charleston county, 1921, and after excepting thereto the defendant Grace put in a general denial.

Subsequently, at the January, 1922, term of court of common pleas of Charleston county, the plaintiff made a motion before Judge McIver, then presiding judge of the court, to transfer the case from calendar No. 1 to calendar No. 2, which motion was refused.

At the April, 1922, term of court, after proper notice, plaintiff made a motion before Judge McIver to strike out counterclaims 2 and 3 contained in the answer of Britton and Feaster, which motion was also refused.

At the same term, Judge McIver presiding, the motion was again made that the case be transferred to calendar No. 2, and upon reconsidering his previous order, Judge McIver revoked the same and ordered, over the objection of the defendants, a reference as to the issues raised by the complaint and the denial by all the respective defendants, and the first counterclaim contained in the answer of Britton and Feaster, and further ordered that the cause remain on calendar No. 1, for a trial of the issues raised by the second and third counterclaims.

Without going further into the facts and proceedings had, it is sufficient for the purposes of this appeal, in consideration of the view we take of the case, to say that the master found in favor of the plaintiff, which finding was confirmed by Judge Bonham, presiding judge, by his decree dated April 7, 1926, which decree allowed interest on the amount recovered from the date the contract was terminated, February 26, 1921. To this decree, the defendants have filed a number of exceptions to this court.

The plaintiff then made a motion before Judge Bonham to dismiss counterclaims 2 and 3, which were, as stated above, reserved on calendar 1 for trial. This motion was denied, and the plaintiff appealed from that order. The plaintiff and defendants filed separate appeals, but both are considered together.

We will first dispose of the question raised by the demurrer. It is the contention of the defendant Grace, by his demurrer, that there is no joint contractual liability, as he is a guarantor of the contract, and is not liable to suit until the liability of the principal has been established by judgment. The defendants Grace and Rabon are described throughout the contract as sureties. There is nothing to indicate that they did not intend to be so bound, and we might well hold them to be sureties, without doing violence to a construction of the contract they signed. But let us, for their benefit, denominate them as guarantors, at the same time, in order that justice may be obtained in our decision, keeping in mind that there are two kinds of guaranties, to wit, absolute guaranty, or guaranty of payment, and guaranty of collection. In 28 Corpus Juris, at page 395, it is said:

"A guaranty is deemed to be absolute unless its terms import some condition precedent to the liability of the guarantor."

The guaranty of Grace and Britton, as mentioned above, imports no such condition. In case of Mudge v. Varner, 146 N.C. 147, 59 S.E. 540, the syllabus is as follows:

"The liability of one who guarantees that a corporate debt will be paid on a designated date is that of a guarantor of payment, and not of collection, and, on the corporation failing to pay, his obligation to pay is absolute."

The guaranty of the defendants herein being absolute, it is well settled by the authorities of this state (Providence Machine Co. v. Browning, 68 S.C. 1, 46 S.E. 550; Carroll County Savings Bank v. Strother, 28 S.C. 504, 68 S.E. 313, and cases there cited) that they are liable to suit without first suing the principal debtor. The law of this state being that one may be sued on an absolute guaranty before, and without suing the principal debtor, what objection can be raised to or what harm can be done by, suing them together? Moreover, section 363 of the Code of Civil Procedure provides that persons severally liable upon the same obligation or instrument may be joined in one action. We have shown above that the defendants' liability as absolute guarantors had accrued. No effort had to be made to collect the debt from the principal before he could have been sued. The plaintiff, at its option, could have sued either, and this being so, and their liability being upon the same instrument, the above section authorized their joinder. In fact, there is no practical distinction in result between the liability of an absolute guarantor and that of a surety. Rouse v. Wooten, 140 N.C. 557, 53 S.E. 430, 111 Am. St. Rep. 875, 6 Ann. Cas. 280.

The present policy of our court is, and should be, against a multiplicity of actions. The appeal of the defendant Grace as to the demurrer is dismissed.

Exceptions 2 and 3 of the defendants question the correctness of Judge McIver's order granting a reference in the cause, over their objection. We are of t he opinion that the Judge was in error, and that the defendants were entitled to a jury trial, this being...