Munroe v. Williams

• Decision Date: 25 March 1892
• Parties: MUNROE et al. v. WILLIAMS et al.
• Court: South Carolina Supreme Court

15 S.E. 279

35 S.C. 572

MUNROE et al. v. WILLIAMS et al.

Supreme Court of South Carolina

March 25, 1892

Appeal from common pleas circuit court of Marlboro county; FRASER Judge.

Action by Munroe & Everett against Williams & Turley. Judgment for defendants. Plaintiffs appeal. Reversed.

T. W Bouchier and Townsend & McLaurin, for appellants.

Dudley & Newton and Nettles & Nettles, for respondents.

McIVER C.J.

This was an action to recover the value of certain lumber and timber alleged to have been delivered by the plaintiffs to the defendants. The complaint set forth two causes of action,--one upon a special contract in writing, and the other upon an implied contract to pay what said lumber and timber, alleged to have been delivered by plaintiffs to defendants, was reasonably worth. It appears that the written contract, which is not under seal, a copy of which is incorporated in the complaint, purports, upon its face, to be a contract, not between the plaintiffs and the defendants but between Neill C. Munroe, one of the plaintiffs, and the defendants, and it is signed "Williams & Turley" and "N. C. Munroe." The plaintiffs, in setting forth their first cause of action in the complaint, after alleging that Neill C. Munroe and Daniel H. Everett are and were copartners, at the time of making said contract, under the name of Munroe & Everett, and that Frank Williams and Dudley Turley are now, and were at the time of making said contract, copartners under the name of Williams & Turley, allege that "the defendants under their hand made a contract in writing with the plaintiffs, one of said plaintiffs, Neill C. Munroe, acting for the plaintiffs as a firm, which was understood and known by the defendants, and executing said contract for plaintiffs." In setting forth the second cause of action there is no allegation of any copartnership, either between the plaintiffs or between the defendants. In their answer defendants set up several defenses: First, a general denial of the allegations of the complaint, except such as are thereinafter specifically admitted, but admitting, in express terms, the copartnership between the defendants; second, that plaintiffs failed to perform their part of the contract set forth in the complaint, and denying, specifically, any knowledge of the fact, alleged by plaintiffs, that the plaintiff Munroe, in making said contract, was acting for Everett as well as himself, and denying that such was the case. The plaintiffs, among other things, offered parol testimony, which was received without objection, tending to show that plaintiffs were copartners, and so known to be by the defendants; that they also knew that Munroe in making the contract was not acting for himself individually, but for the firm of Munroe & Everett; that defendants had repeatedly recognized Everett as one of the firm, and had offered to pay him his half of the amount due by them for lumber, and that plaintiffs had performed their part of the contract; and that defendants had several times promised to pay the amount of the account sued upon, but had failed to comply with any of their promises. At the close of the testimony in behalf of plaintiffs a motion for a nonsuit was made by defendants, whereupon plaintiffs moved to amend their complaint "by making suitable allegations to complete the second cause of action." The motion to amend was refused, and the nonsuit was granted, in a short order, which does not disclose the grounds upon which the nonsuit was granted. The grounds upon which the motion for nonsuit was made, as well as the grounds upon which such motion was granted, not appearing in the "case" as prepared for argument here, we are compelled to gather them, as best we may, from the plaintiffs' grounds of appeal, as set forth in the record, and from the additional grounds upon which the defendants have given notice that they would ask this court to sustain the judgment below, likewise set forth in the record, in the light of the argument as presented by the respective counsel.

If the nonsuit was granted upon the ground of a want of evidence to establish the allegations of the first cause of action, as seems to be implied by the plaintiffs' 1st, 2d, 3d, 5th and 6th grounds of appeal, then we think there was error. The rule is well...