Hursey v. Surles

• Decision Date: 10 April 1912
• Citation: Hursey v. Surles, 91 S.C. 284, 74 S.E. 618 (S.C. 1912)
• Parties: HURSEY v. SURLES et al.
• Court: South Carolina Supreme Court

74 S.E. 618

91 S.C. 284

HURSEY v. SURLES et al.

Supreme Court of South Carolina

April 10, 1912

Appeal from Common Pleas Circuit Court of Dillon County; J. W. De Vore, Judge.

"To be officially reported."

Action by John A. Hursey against Allen Surles and another, executors of Archibald B. Surles. From a judgment for plaintiff defendants appeal. Reversed and remanded.

James W. Johnson and Livingston & Gibson, for appellants. Sellers & Moore, for respondent.

WOODS J.

In this action of John A. Hursey against the executors of Archibald Surles to recover compensation for alleged services rendered to Surles in his lifetime, the plaintiff recovered judgment for $1,866.25. The more important questions made by the appeal depend on the court's view of the scope of the issues made by the following material allegations of the pleadings. The complaint alleges: "That at the time of the death of the said Archibald B. Surles, the testator of the defendants, he was indebted to the plaintiff upon an account for services rendered by the plaintiff to and for the testator in his lifetime, extending over a period of a little over 11 years and 6 1/2 months immediately preceding his death. That said services were of a business nature performed by the plaintiff at the instance and at the request of the defendants' testator in the conduct and management of his extensive business and property interests in and around the town of Dillon, in said county and state. That said services consisted generally in making and drawing up contracts with his tenants in said town, leasing his houses and lands therein, collecting and enforcing the collection of his rents therein, looking after the repairs on his houses and about the premises thereof, conducting his private correspondence, looking after the insurance of his buildings collecting his rents on a part of his farm outside of said town, and doing and performing any and all acts and services in connection with his extensive interests in the town of Dillon outside and apart from his mercantile business in said town, whenever called upon to do so by the said testator at all times, and under all and varying circumstances, under a contract made by the plaintiff with the said testator that he would amply compensate the plaintiff therefor. That said services so rendered as aforesaid by the plaintiff for and on behalf of said testator for the time aforesaid were and are reasonably worth the sum of $6,935, no part of which has been paid, although the plaintiff has demanded of the executors payment of the same." The defendants meet this allegation by saying in their answer: "They deny emphatically all the other allegations of said complaint, and they allege that the said Archibald B. Surles was a man of rare business qualifications; that he gave his business his own personal attention; that he looked after all the details of his business; that he paid his debts promptly, and by judicious and close attention to business massed quite a fortune during his lifetime; that so far from the plaintiff rendering him assistance the said Surles set the plaintiff up in business, and contributed largely to his support for many years prior to his death, and made him a handsome devise in his will; that, so far from the said Surles being indebted to said plaintiff at the time of his death, these defendants allege that if an accounting were gone into between plaintiff and said A. B. Surles that said plaintiff would be largely in debt to the said Surles without taking into consideration the devise in question. They allege further, that said A. B. Surles paid the plaintiff all demands he may have had against him during his, the said A. B. Surles', lifetime."

The plaintiff had first married the daughter of Surles, and, upon her death, had married a second time. There were two children of the first marriage who were living at the time of the death of their grandfather, the testator. The plaintiff and the testator lived on terms of intimacy in their social and business relations until the end of the testator's life. The plaintiff managed Surles' mercantile business in the town of Dillon, and for him collected rents, and from time to time attended to the repair of buildings. The lot on which plaintiff resided was devised to him by Surles on the condition, expressed in the will, that he should properly manage and keep up the stock of goods for the benefit of his children to whom it had been bequeathed.

In support of the specific allegations of the complaint evidence was introduced by the plaintiff tending to show that he performed the services set out in the complaint as the representative of Surles. As evidence that these services were not regarded by the parties as gratuitous, the wife of the plaintiff testified with respect to an interview between Surles and the plaintiff: "Q. Well, now, tell in your own words how that conversation arose, who brought it about, and all about it? A. Well, Mr. Surles asked Mr. Hursey himself to lock up the store, and come to dinner with him. He wanted to have a private conversation with us, and he brought up this subject himself. He told us he had decided to marry, and this marriage would cause him to have to make some changes in the business, and referred to the contract he had with Mr. Hursey about tending to his business on the outside. He says, 'You know I have given you a three-horse farm, and, when I marry, I will want to change that, and give that to my wife,' and asked Mr. Hursey if he was willing for him to give him 18 acres near town in place of that three-horse farm. He says, 'You know the house and lot you live in is for your work on the inside. Now I ask your permission to change this for 18 acres near town.' Q. What was that for? A. For the work of collecting rents, etc., on the outside of the store. Q. Did you state, I believe you said, that the contract that existed between them was referred to? A. Oh, yes, sir; he said he...