Jenkins v. Bennett

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: McIVER
• Citation: 18 S.E. 929,40 S. C. 393
• Decision Date: 22 February 1894
• Parties: JENKINS v. BENNETT et al.

18 S.E. 929
40 S. C. 393

JENKINS
v.
BENNETT et al.

Supreme Court of South Carolina.

Feb. 22, 1894.

Abatement and Revival — DEATn of Party — Action when Survives—Inspection of Papers in Possession of Adverse Party — Affidavit —Sufficiency.

1. A complaint alleging that plaintiff contracted to do certain work for a specified price, that he was prevented by defendants from performing it, and asking damages resulting from the loss of profits which lie expected to make, states an action in tort which does not survive the death of defendants.

2. An order to compel defendant to furnish papers in his possession to plaintiff for inspection should not be granted on an affidavit alleging that such papers "contain evidence relating to the merits of the action, " as such allegation is no more than an expression of plaintiffs "opinion, " and, not a statement of a "fact."

3. It was further ground to deny the motion that the affidavit did not show that, any demand to be permitted to make the inspection had been made and refused.

4. Under Code, § 389, providing that the court may order either party to give to the other within a specified time an inspection of papers in ids possession containing evidence relating to the merits of the action, and that, if compliance with the order be refused, the party refusing may be punished, a penalty for such refusal should not be imposed till it is ascertained judicially that such refusal was without good reason.

Appeal from common pleas circuit court of Charleston county; J. B. Kershaw, Judge.

Action by Edward N. Jenkins against Elizabeth H. Bennett and Mary J. Ross to recover damages resulting from defendants preventing plaintiff from performing work which he had contracted to perform for defendants. Pending the action, Bennett died, and Ross was appointed her administrator. The court made an order continuing the action against the representative of Bennett and against Ross individually, and made a further order requiring defendants to furnish certain papers in their possession to plaintiff for inspection. From both orders defendants appeal. Reversed.

The following is the complaint: "The above-named plaintiff, Edward N. Jenkins, complaining of the above-named defendants, Elizabeth H. Bennett and Mary J. Ross, alleges: First. That the plaintiff is a contractor and builder, residing in Charleston county, South Carolina, and that the above-named defendants were, at the times hereinafter mentioned, seised in fee simple and the owners of a certain piece of property known as the 'Old American Hotel, ' situate on the corner of King and George streets, in the city and county of Charleston, state aforesaid. Second. That on the 1st day of October, 1890, said defendants, by their agent, John H. Devereux, architect, published in the Charleston News and Courier, the following advertisement: 'Office of John H. Devereux. Architect, Charleston, S. C, September 29, 1890. Proposals will be received until Monday, the 20th day of October, 1890, for the work of furnishing the materials and labor required to alter and improve the Old American Hotel property, at the corner of King am! George streets, according to plans and specifications to be seen at my office and at the rooms of the Builders' and Dealers' Exchange, in this city. The bids will be open at 12 m. on Monday, 20th October, 1890. by the president of the Builders' and Dealers' Exchange, in the presence of the architect and such of the bidders as may desire to be present. The right is reserved to reject any and all bids. John H. Devereux, Architect.' Third. That thereafter, in response to. said advertisement, on the 20th day of October. A. D. 1890, this plaintiff, at the Builders' and Dealers' Exchange aforesaid, according to the terms of said advertisement, offered to John H. Devereux, agent of said defendants, and put in a bid to do said work as aforesaid, and furnish the labor and material therefor in accordance with said plans and specifications, for the sum of nineteen thousand and two hundred dollars. Fourth. That the defendants, through their agent, the said John H. Devereux, thereupon accepted the said bid of this plaintiff, and thereby contracted and agreed to pay this plaintiff nineteen thousand and two hundred dollars in consideration of the performance

by this plaintiff of the work of furnishing the materials and labor required to alter and improve the Old American Hotel property, at the corner of King and George streets, aforesaid, according to said plans and specifications so contracted and agreed by this plaintiff with the defendants to be

done by this plaintiff at said price. Fifth. That then and thereafter this plaintiff was always ready, able, and willing to perforin the said contract on his part, and duly offered then forthwith and from time to time to perform and complete the same, and to do all tilings necessary and usual for securing the same to be done. Sixth. That said defendants, in breach of the said contract, thereafter continuously hindered and prevented this plaintiff from performing the same, to the damage of this plaintiff by the loss of the direct profits on said contract in the sum of five thousand dollars. Wherefore plaintiff demands judgment against said defendants in the sum of five thousand dollars, together with the costs of this action."

McCrady, Sons & Bacot, for appellants.

Northrop & Memminger, for respondent.

McIVER, C. J. This action was commenced by the plaintiff against the defendants on the 12th of October, 1891, to recover damages for the loss of profits on a contract which he alleged the defendants hindered and prevented him from performing. In the complaint (a copy of which should be incorporated in the report of the case) the plaintiff alleges substantially as follows: (1) That he is a contractor and builder, and that the defendants were "seised In fee simple and

[18 S.E. 930]

(he owners of" certain real property in the city of Charleston, known as the "Old...