Monteith v. Harby

• Decision Date: 24 April 1940
• Docket Number: 15069.
• Parties: MONTEITH v. HARBY et al.
• Court: South Carolina Supreme Court

8 S.E.2d 629

193 S.C. 349

MONTEITH v. HARBY et al.

No. 15069.

Supreme Court of South Carolina

April 24, 1940

L D. Jennings, of Sumter, for appellant.

Lee & Moise, M. M. Weinberg, and Epps & Epps, all of Sumter, for respondents.

WM. H GRIMBALL, Acting Associate Justice.

This is an appeal from judgment entered on a verdict directed in favor of respondents. Former appeals in this cause are reported in 187 S.C. 168, 197 S.E. 215, and 190 S.C. 453, 3 S.E.2d 250.

The cause was commenced by the service of summons and complaint in October, 1937. The complaint alleges that Sumter Trust Company was heretofore a corporation under the laws of this State, doing a banking and trust business; that the defendants were officers and directors of the corporation that the Judge of Probate for Sumter County, on March 10th 1918, appointed Sumter Trust Company guardian for plaintiff who was seven years old on April 16th, 1917, and as such guardian took possession and control of the estate of plaintiff, consisting of $1,484.84. The complaint continues as follows:

"5. That the defendants herein, as the officers and directors of the Sumter Trust Company, were charged with the performance of said guardianship, and that it was the duty of said defendants to safely and securely invest said funds belonging to the plaintiff so that net income could be realized therefrom, and to wisely and providently manage said estate; but instead of doing this, the defendants and the Sumter Trust Company recklessly and negligently converted the same to the use of the Sumter Trust Company, and permitted the funds belonging to the plaintiff to be confused and commingled with the funds and property of the said Sumter Trust Company, so that it became, and is now, impossible to identify or distinguish said funds.

"6. That it was the duty of the defendants to so conduct and manage the business of the Sumter Trust Company as guardian of the plaintiff and her estate so that said assets should be safely and securely invested and segregated from any other assets and property belonging to the Sumter Trust Company in its own right or as trustee or guardian for other estates; but said defendants, instead of performing this duty, negligently and recklessly intermingled and confused the money of the plaintiff with other money belonging to the Sumter Trust Company in its own right and to it in other fiduciary capacities, and negligently and recklessly converted the same into credits, choses in action, and other assets, all of which, through the manipulation of the defendants, have been so inextricably confused that it has become impossible to segregate the property of the plaintiff; and in so confounding said assets with other property, the said defendants negligently and recklessly failed to take any security or collateral to insure the return of said property to the plaintiff and her estate.

"7. That on or about the 17th day of February, 1927, the Sumter Trust Company was forced to suspend its business, and was placed in the hands of receivers.

"8. That after the plaintiff reached the age of twenty-one years, she called upon the receivers of the Sumter Trust Company for an accounting of the Sumter Trust Company as guardian for her, and payment to her of whatever was due; but said receivers have failed to furnish such an accounting, but have paid to the plaintiff from time to time small payments on what was due her by said Sumter Trust Company as guardian, and she is informed and believes that she will not receive any other payments.

"9. That by reason of the acts and omissions of the defendants as herein specified, loss and damage have resulted to the plaintiff of the money taken charge of by the defendants as aforesaid, and of the interest thereon, and of the difference between the insufficient rate of interest paid by the Sumter Trust Company during the time it had the use of said funds and the rate which could have been realized on proper investment; that in order to ascertain accurately the damage sustained by the plaintiff, an accounting will be necessary, but this plaintiff alleges upon information and belief, that the amount of such damage is at least the sum of One Thousand ($1,000.00) Dollars.

"That the plaintiff reached the age of twenty-one years on the 29th day of July, 1933.

"10. The plaintiff alleges that it was only within the past sixteen months that she discovered that the defendants and the Sumter Trust Company had recklessly and negligently converted the funds belonging to her to the use of the Sumter Trust Company and had permitted said funds to be confused and commingled with the funds and property of the Sumter Trust Company, and had confused the money of the plaintiff with other money belonging to the Sumter Trust Company in its own right and to it in other fiduciary capacities, and had converted the same into credits, choses in action, and other assets, as set forth in the complaint herein, so that it became and is now impossible to identify or distinguish said funds.

"Wherefore the plaintiff prays judgment against the defendants that they do account to her for said funds herein referred to, together with interest thereon, and that plaintiff have judgment against the defendants for the amount found due upon such accounting, which the plaintiff alleges to be at least the sum of One Thousand ($1,000.00) Dollars and for such other and further relief as may be just and equitable."

This complaint has already been construed by this court. See Monteith v. Harby, McKinley v. Harby, 187 S.C. 168, 197 S.E. 215.

"The plaintiffs", announced this court, "asserting that these two cases, the complaints in which are practically identical, are suits in equity, had them docketed on Calendar 2; the defendants thereupon, claiming that the cases are actions at law, applied for an order transferring them to Calendar 1. Judge Gaston, who heard the matter, in granting the motion, said: 'I am satisfied that this is not a suit in equity but that the facts alleged in the complaint are very similar to, and in certain respects identical with, the allegations in the case of Bowen v. Strauss, et al., 175 S.C. 23, 178 S.E. 252. That being so, I feel that I am bound by the decision of the Supreme Court in that case, in which it was held that it was an action at law to recover damages for an alleged tort.'

"We have carefully compared the complaint before us with the pertinent allegations of the complaint in Bowen v. Strauss 175 S.C. 23, 178 S.E. 252 [253]", said this Court, "and are satisfied that Judge Gaston was right in the conclusion reached by him. The allegations of fact contained in the two complaints are almost the same. That is to say, the wrongs alleged in the B...