Karres v. Pappas

• Decision Date: 09 July 1940
• Docket Number: 15122.
• Citation: 10 S.E.2d 15,194 S.C. 512
• Parties: KARRES v. PAPPAS.
• Court: South Carolina Supreme Court

10 S.E.2d 15

194 S.C. 512

KARRES v. PAPPAS.

No. 15122.

Supreme Court of South Carolina

July 9, 1940

Dunlap & Dunlap, of Rock Hill, for appellant.

Hemphill & Hemphill, of Chester, and Spencer & Spencer, of Rock Hill, for respondent.

STUKES Justice.

This action for an accounting was commenced on September 1, 1933 by a member of a former partnership who alleges that the latter was formed between himself, his brother and the defendant in August, 1919, each with a one-third interest the partnership profitably operated a varying number of restaurants and a confectionery in the city of Rock Hill. It is further alleged in the complaint that about May, 1922 plaintiff's brother withdrew, so transferring his interest that the remaining partners continued in ownership and operation of the enterprises in equal shares until June 14, 1932, when the partnership was dissolved by agreement under which plaintiff took over the confectionery individually and the sole management of the cafe then in operation passed to the defendant, but that there was no complete accounting and settlement of the partnership affairs, that the defendant kept the books of the partnership without access thereto by the plaintiff and that a full accounting will disclose that a large sum of money is due and owing by defendant unto plaintiff. The prayer of the complaint was that the defendant be required to make discovery of all books and accounts of the partnership, for a complete accounting of its affairs and that plaintiff have "judgment against the defendant for such sum as may upon proper accounting had, be found due and owing by the defendant to the plaintiff in the partnership settlement."

The answer, dated January, 1935, contains a denial that defendant is indebted to the plaintiff and, by way of affirmative defense, allegations to the effect that there had been various settlements between the partners from time to time and particularly upon the dissolution of the partnership on June 14, 1932, when the businesses were divided between the former partners, at which time the defendant agreed to pay to plaintiff the sum of four hundred dollars (which is also referred to in the copy of the answer in the record as four hundred and eighty dollars), whereupon the plaintiff took possession of the principal books and records of the partnership and destroyed the cancelled bank checks. There was further included in the answer a counterclaim for alleged indebtedness of plaintiff to defendant at the termination of the partnership of four hundred and eighty dollars evidenced by a promissory note then given and an additional sum of one hundred and ninety-two dollars; and the answer concludes with the prayer that the complaint be dismissed, for judgment in favor of defendant against the plaintiff for the sum of six hundred and seventy-two dollars and costs, and for such other and further relief as may be just and proper.

There was a general order of reference to a Special Referee who held several references on dates from January, 1935, to April, 1937, and took testimony which appears in the record in rather unsatisfactory narrative form. However, it is apparent from the report of the Referee that he carefully considered the evidence and painstakingly cast up the accounts between the partners. He held and recommended to the Court that there had never during the existence of the partnership been a valid and proper settlement between the partners and that as of August 1, 1922, after the withdrawal of the third partner, defendant was indebted unto plaintiff in the sum of nineteen hundred and forty-seven and 89/100 dollars, the recovery of which however was barred by the Statute of Limitations; and that as of June 12, 1932, the date of the final dissolution, defendant was indebted to plaintiff in the additional sum of seven hundred and 93/100 dollars, in which latter amount judgment was recommended for plaintiff against defendant, together with the costs of the action.

Plaintiff and defendant excepted to the report of the Referee and the matter was heard by his Honor, Judge Gaston, who by his decree dated January 31, 1939, confirmed the Referee's findings of fact, but reversed the conclusion of law that recovery of the sum due plaintiff by defendant as of August 1, 1922, was barred by statute, this upon the ground that his right thereto was not discovered by the plaintiff on account of the concealment thereof by defendant, and judgment was rendered against the defendant in the sum of twenty-six hundred and forty-eight and 22/100 dollars, being the total of the sums found by the...