International Agr. Corp. v. Lockhart Power Co.

• Decision Date: 10 November 1936
• Docket Number: 14375.
• Citation: 188 S.E. 243,181 S.C. 501
• Parties: INTERNATIONAL AGRICULTURAL CORPORATION v. LOCKHART POWER CO.
• Court: South Carolina Supreme Court

188 S.E. 243

181 S.C. 501

INTERNATIONAL AGRICULTURAL CORPORATION v. LOCKHART POWER CO.

No. 14375.

Supreme Court of South Carolina

November 10, 1936

Appeal from Common Pleas Circuit Court of Spartanburg County; Wm. H Grimball, Judge.

Action by the International Agricultural Corporation against the Lockhart Power Company. Judgment for plaintiff, and defendant appeals.

Judgment sustained, and appeal dismissed.

The portion of the complaint requested to be reported follows:

3. That heretofore, and prior to the time of the conversion hereinafter set forth, McWhirter-Lancaster Company, a corporation under the laws of the state of South Carolina became obligated to the plaintiff under certain trust agreements for fertilizers consigned by plaintiff to said McWhirter-Lancaster Company, for sale by McWhirter-Lancaster Company and accounted by it to the plaintiff for proceeds of such sale; that certain portions of such fertilizers were sold to S. J. Heatherly, who thereupon became obligated to the plaintiff for the purchase price thereof.

4. That as plaintiff is informed and believes, about April 4, 1932 the said S. J. Heatherly delivered to McWhirter-Lancaster Company certain cedar poles of the value of $144.23 for delivery to plaintiff of the said poles or proceeds thereof, as credit upon the obligation of said S. J. Heatherly.

5. That, as plaintiff is informed and believes, thereafter on or about April 4, 1932, the defendant received the said cedar poles from McWhirter-Lancaster Company and wrongfully converted the same or the proceeds thereof to the defendant's own use, to the damage to the plaintiff in the sum of $144.23.

6. That plaintiff alleges upon information and belief it became entitled to said cedar poles or proceeds thereof upon delivery of the same to McWhirter-Lancaster Company by S. J. Heatherly and on information and belief alleges that the defendant attempted to credit the value of said poles upon past-due obligations of McWhirter-Lancaster Company, which plaintiff alleges that defendant had no right to do, and plaintiff alleges on information and belief that it is entitled to recover of the defendant the value of said poles.

7. That the full amount and more of the value of said poles is still due and owing the plaintiff under the trust agreements and obligations hereinabove referred to; that as plaintiff is informed and believes, McWhirter-Lancaster Company is and has been for some time in the hands of a receiver.

Sawyer & Sawyer, of Union, and J. Hertz Brown, of Spartanburg, for appellant.

Osborne & Butler, of Spartanburg, for respondent.

A. L. GASTON, Acting Associate Justice.

Complaint herein was filed November 27, 1934. Demurrer thereto was served April 15, 1936, and was heard by Hon. Wm. H. Grimball, as Presiding Judge, at Spartanburg, and overruled on May 25, 1936.

His order recites also "that the Plaintiff objected to the demurrer on the ground that a former demurrer on the same grounds had been overruled by Judge J. Henry Johnson, because of the insufficiency of the demurrer."

"I am of the opinion, however, that the demurrer presented before me should be considered on its merits."

This appeal is based on exceptions to the foregoing order, assigning error of law, in that it appears on the face of the complaint that it fails to state facts sufficient to constitute a cause of action, because the complaint shows: (1) That the McWhirter-Lancaster Company was in rightful possession of the cedar poles, with authority to sell them, and that by delivery thereof to the appellant, it passed title to the poles to the appellant; (2) that appellant secured rightful possession of the poles, without notice of any defect in the title thereto; (3) that the complaint alleges in the alternative that McWhirter, etc., Company took the proceeds of the poles, and paid such proceeds to the appellant for application on an account, and the complaint fails to allege any right on the part of the respondent to pursue such proceeds and to recover the same from the appellant; (4) that no facts are alleged to show conversion by appellant of either the poles or of the proceeds, and the conclusions as to conversion are not justified, nor based on any facts; and (5) that the complaint fails to reveal any right belonging to the respondent invaded by any act or omission of the appellant.

Let paragraphs 3 to 7, inclusive, of the complaint be reported. The respondent says, in the argument by its attorneys, that "it does appear (by the allegations of the Complaint) that the McWhirter Company occupied the position of a trustee and held respondent's property in that capacity. It appears that it did not do what its trust permitted it to do, and therefore it was guilty of a breach of trust, and the appellant having received respondent's property it is liable to respondent, for the actual value of such property."

Respondent further claims that "the McWhirter Company was not authorized to apply respondent's property to the payment of the debt it owed appellant, and appellant cannot hold respondent's property against it under these circumstances."

The appellant says that the "appeal involves a decision merely as to whether respondent's Complaint sets forth a title to certain cedar poles superior to that of appellant's claim to same; and relies upon the allegations of paragraph 4 of the Complaint to show the authority vested in the McWhirter Co., to dispose of the cedar poles; and the obligation to account for said poles, or the proceeds; that McWhirter did dispose of the poles as authorized and title thereto passed to appellant in a perfectly proper manner."

The issues on the appeal are in a narrow compass; no question is involved as to the rights of an innocent purchaser for...