Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co., No. 18665

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBRAILSFORD; MOSS, C.J., LEWIS and BUSSEY, JJ., and LIONEL K. LEGGE
Citation155 S.E.2d 618,249 S.C. 561
Docket NumberNo. 18665
Decision Date09 June 1967
PartiesGUIMARIN & DOAN, INC., Respondent, v. GEORGETOWN TEXTILE AND MANUFACTURING COMPANY, Inc., M. B. Kahn, Irwin Kahn, H.Bernard Kahn, and Sol Kahn, d/b/a M. B. Kahn Construction Company, The TraneCompany, Commercial Roofing & Sheet Metal Co., Johnson Service Company, andChas. T.Main, Inc., of whom Commercial Roofing & Sheet Metal Co. and Johnson ServiceCompany are, Appellants.

Page 618

155 S.E.2d 618
249 S.C. 561
GUIMARIN & DOAN, INC., Respondent,
v.
GEORGETOWN TEXTILE AND MANUFACTURING COMPANY, Inc., M. B.
Kahn, Irwin Kahn, H.Bernard Kahn, and Sol Kahn, d/b/a M. B.
Kahn Construction Company, The TraneCompany, Commercial
Roofing & Sheet Metal Co., Johnson Service Company, andChas.
T.Main, Inc., of whom Commercial Roofing & Sheet Metal Co.
and Johnson ServiceCompany are, Appellants.
No. 18665.
Supreme Court of South Carolina.
June 9, 1967.

[249 S.C. 562]

Page 619

Whaley & McCutchen, Donelan & Donelan, J. Edwin Belser, Jr., Columbia, for appellants.

[249 S.C. 563] Belser, Belser & Baker, Cooper, Gary, Nexsen & Pruet, Columbia, for respondent.

BRAILSFORD, Justice:

This action arose out of the construction of an industrial plant in Georgetown County, South Carolina, by M. B. Kahn Construction Company, as prime contractor, for Georgetown Textile and Manufacturing Company, Inc., the owner. Chas. T. Main, Inc., was the architect. Kahn subcontracted the heating and air conditioning requirements of the construction to Guimarin & Doan, Inc. Guimarin, in turn, subcontracted installation of the ducts to Commercial Roofing and Sheet Metal Co. and installation of the temperature controls to Johnson Service Company. The air conditioning[249 S.C. 564] units and assessories were purchased by Guimarin from The Trane Company. 1

Claiming that the plant machinery had been damaged by water leakage and falling debris, Georgetown made a claim against

Page 620

Kahn, which the latter settled for $22,500.00. Kahn, in turn, claimed the amount of this settlement against Guimarin, and withheld a balance due on its subcontract. Guimarin then commenced this action for declaratory judgment, naming all of the above mentioned parties as defendants.

Commercial and Johnson each demurred to the complaint on the grounds of misjoinder of causes of action and insufficiency of facts to state a cause of action against the demurrants. This appeal is from an order of the circuit court overruling these demurrers. The other four defendants have filed answers. Commercial and Johnson are the only appellants. The statements in their respective briefs of the questions involved on this appeal vary in verbiage, but pose the same legal issues:

1--Have several causes of action been improperly united in the complaint?

2--Does the complaint state facts sufficient to constitute a cause of action against Commercial or Johnson?

The complaint alleges that a genuine controversy exists between Guimarin and each of the defendants as to the cause and amount of the damage to Georgetown's machinery, for which Kahn has made claim against Guimarin, and as to the consequences upon the respective rights and liabilities [249 S.C. 565] of the parties under the related construction contracts. The complaint further alleges that the heating and air conditioning subcontract has been performed by Guimarin and its subcontractors, Commercial and Johnson, in a proper manner, in full compliance with the plans and specifications prepared by Main, and that Guimarin is not responsible for such damage as may have occurred. The complaint puts forward certain alternative theories as to the possible cause of such damage, i.e.: 1. The plans and specifications were inadequate, for which Main is responsible; 2. The air conditioning units and equipment furnished by Trane did not meet the specifications as represented for which Trane is responsible; 3. Kahn was negligent in permitting Georgetown to commence operation of the machinery prior to completion of the plant, proper testing and final clean up; 4. Georgetown was negligent in commencing the operation of the plant under these circumstances.

The complaint further alleges that Georgetown and Kahn contend the water damage was caused by improper and defective installation of air conditioning ducts, and that the damage from falling debris was caused by objects left upon the ducts by Commercial and Johnson in the negligent performance of their subcontracts. The complaint states that if it should be determined by the court that such damage was caused by Commercial and Johnson, or either of them, in the faulty performance of their contracts, then plaintiff will be entitled to indemnity from one or both for such damages as may be assessed against it.

The Uniform Declaratory Judgments Act was adopted here in 1948 and is now codified as Chapter 24 of Article 10, Code of 1962. The complaint invokes this act and seeks a declaration of the rights, duties and responsibilities of the parties with respect to the damage claim, in the light of the construction contracts and the relations of the parties thereunder.

[249 S.C. 566] The first ground of appeal, misjoinder of causes of action, is without merit for the compelling reason that the only cause of action stated in the complaint is for a declaration of the interrelated rights and liabilities of the parties under the contracts. Compare Bank of Augusta v. Stacher Motor Co., S.C., 152 S.E.2d 676, in which a like conclusion was reached.

Apparently, appellants view each of the alternative theories stated in the complaint concerning the cause of Georgetown's damage as a cause of action. This is a misconception of the complaint. These allegations are...

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10 practice notes
  • Byrd v. Irmo High School, No. 24399
    • United States
    • United States State Supreme Court of South Carolina
    • November 1, 1995
    ...dispute or difference of a contingent, hypothetical or abstract character. Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co., 249 S.C. 561, 155 S.E.2d 618 (1967). This Court will not pass on moot and academic questions or make an adjudication where there remains no actual contr......
  • Hitter v. McLeod, No. 21224
    • United States
    • United States State Supreme Court of South Carolina
    • May 12, 1980
    ...action. See Preston H. Haskell Company v. Morgan, S.C., 262 S.E.2d 737 (1980); Guimarin & Doan v. Georgetown Textile & Mfg. Co., 249 S.C. 561, 155 S.E.2d 618 (1967). Accordingly, the lower court erred in overruling the demurrer on this While respondent Hitter's dilemma is appreciabl......
  • Midland Guardian Co. v. Thacker, No. 0097
    • United States
    • Court of Appeals of South Carolina
    • December 12, 1983
    ...or difference of a contingent, hypothetical or abstract character. Guimarin & Doan, Inc. v. Georgetown Textile and Mfg. Co., Inc., 249 S.C. 561 at 566, 155 S.E.2d 618 An action to recover usurious interest will lie at common law. 47 C.J.S. Interest & Usury § 210 at 360 (1982). Prior......
  • Government Employees Insurance Company v. Melton, Civ. A. No. 71-1200.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 13, 1972
    ...v. Safeco Ins. Co. of America (1968), 251 S.C. 410, 162 S.E.2d 709; Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co. (1967), 249 S.C. 561, 155 S.E.2d 618. * S.C.Code, 1962, 2 224 F.Supp. 369 (D.R.I.1963). 3 Counsel for defendants candidly admitted to the court that it was the ......
  • Request a trial to view additional results
10 cases
  • Byrd v. Irmo High School, No. 24399
    • United States
    • United States State Supreme Court of South Carolina
    • November 1, 1995
    ...dispute or difference of a contingent, hypothetical or abstract character. Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co., 249 S.C. 561, 155 S.E.2d 618 (1967). This Court will not pass on moot and academic questions or make an adjudication where there remains no actual contr......
  • Hitter v. McLeod, No. 21224
    • United States
    • United States State Supreme Court of South Carolina
    • May 12, 1980
    ...action. See Preston H. Haskell Company v. Morgan, S.C., 262 S.E.2d 737 (1980); Guimarin & Doan v. Georgetown Textile & Mfg. Co., 249 S.C. 561, 155 S.E.2d 618 (1967). Accordingly, the lower court erred in overruling the demurrer on this While respondent Hitter's dilemma is appreciabl......
  • Midland Guardian Co. v. Thacker, No. 0097
    • United States
    • Court of Appeals of South Carolina
    • December 12, 1983
    ...or difference of a contingent, hypothetical or abstract character. Guimarin & Doan, Inc. v. Georgetown Textile and Mfg. Co., Inc., 249 S.C. 561 at 566, 155 S.E.2d 618 An action to recover usurious interest will lie at common law. 47 C.J.S. Interest & Usury § 210 at 360 (1982). Prior......
  • Government Employees Insurance Company v. Melton, Civ. A. No. 71-1200.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 13, 1972
    ...v. Safeco Ins. Co. of America (1968), 251 S.C. 410, 162 S.E.2d 709; Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co. (1967), 249 S.C. 561, 155 S.E.2d 618. * S.C.Code, 1962, 2 224 F.Supp. 369 (D.R.I.1963). 3 Counsel for defendants candidly admitted to the court that it was the ......
  • Request a trial to view additional results

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