Respass & Respass v. King Pontiac, 17657
| Decision Date | 12 May 1960 |
| Docket Number | No. 17657,17657 |
| Citation | 236 S.C. 363,114 S.E.2d 486 |
| Court | South Carolina Supreme Court |
| Parties | RESPASS & RESPASS, C. P. A., Respondent, v. KING PONTIAC and Annie W. R. Freeman, Executrix, Appellants. |
J. Bratton Davis, W. Cannon Matthews, Robinson, McFadden & Dreher, Columbia, George D. Levy, Clifton G. Brown, Sumter, for appellants.
McKay, McKay, Black & Walker, Columbia, for respondent.
This is an action in contract for compensation for an audit of the books of King Pontiac Company, Inc. Some background of the controversy appears in the opinion filed May 5, 1960, in the case of Freeman v. King Pontiac Company, Inc., S.C., 114 S.E.2d 478, reference to which may be had.
It is alleged in the complaint that the resident manager of plaintiff, one Matthiessen, received instructions from Freeman, individually or as secretary of King Pontiac Company, Inc., to examine its books and records and Matthiessen went to its office for that purpose but could not complete his audit because one William Moore, an employee of the company, refused access to the books. Negotiations were had between the defendants for authorization of the audit, and pursuant to an order issued by the court on August 10, 1955, in the case of King Pontiac Company, Inc., v. Matthews, et al., plaintiff was authorized to complete the audit. Subsequently, upon agreement of the parties, the audit was stopped and plaintiff submitted bill for services rendered in the amount of $866.31 to King Pontiac which refused payment on the ground that the audit was made for and on behalf of Freeman individually. Upon submission of the bill to him he refused payment on the ground that he was acting as Secretary and Treasurer for King Pontiac when he ordered the audit, and it is liable for the account. When the audit was ordered Freeman was Vice-President, Secretary, Treasurer and General Manager, of King Pontiac. The titles constitute an overstatement, Freeman v. King Pontiac Company, Inc., supra. Plaintiff does not know which of the defendants is liable for payment of the account and the court is asked to determine which, if either, is liable, or if both are liable, and the prayer for judgment is so framed. No question is raised as to the form of the pleading.
The answer of King Pontiac contains a limited denial and alleges that the order of the court in King Pontiac Company, Inc., v. Matthews, et al. recognized Matthews as the active general manager, of King Pontiac and he and Matthiessen had an understanding on Aug. 23, 1955, that King Pontiac had not authorized the audit and would not pay for it, after which the audit was made by the plaintiff for Freeman. The prayer of the answer was for dismissal of the complaint as to King Pontiac.
The answer of Freeman also contained a limited denial and alleged that on August 4, 1955, he in his capacity as Vice President, Secretary and General Manager of King Pontiac instructed Matthiessen in writing to examine the books of King Pontiac. Plaintiff had for several prior years made audits of King Pontiac at the request of Freeman in his capacity as an officer of the company and had been paid by the latter. It was denied that the audit ordered by the answering defendant was stopped by agreement of the parties and, although the defendant requested completion of the audit, it was never completed. If there is any debt to plaintiff, which is denied, it is the obligation of King Pontiac. Dismissal of the complaint as to this defendant was prayed.
Matthiessen, an associate of plaintiff and referred to in the latter's brief on appeal as a partner, testified on trial that he was first employed to audit the records of King Pontiac at the close of 1950 by Mr. Freeman, Vice President, etc., and stockholder of the company, and made audits during the succeeding years, through April 30, 1955. On August 6, 1955 he began a special audit at the request of Freeman. It was stopped that afternoon by a Mr. Moore who acted pursuant to instructions of Matthews, operating manager of King Pontiac. He returned to the company office, pursuant to Freeman's instructions, on August 10, and worked one or two days in the presence of Freeman who was the corporate officer in charge. Later, on August 23, pursuant to letter and verbal authority from Freeman, the witness returned to King Pontiac and proceeded with the audit. Matthews had no objection to such but made it clear that he was not authorizing the audit and was not responsible for the cost. The witness then telephoned Freeman and asked him if he would personally guarantee the bill or get the money for the job. Freeman replied, 'You'll get your money.' On the same day the witness was handed a letter at the company office from Matthews, addressed to the witness, and advising him that the writer had no objection to the making of the audit for Freeman, quoting from the letter, The letter was signed by Matthews as General Manager and approved in writing at the foot of it, by plaintiff. Plaintiff's audit, dated Sept. 2, 1955, was later submitted to Freeman; plaintiff had made an earlier annual audit of King Pontiac as of April 1955 and this September audit supplemented it. Plaintiff's bill inclued $830 for twenty and three-fourths days at $40 per day, and $36.31 telephone expenses. It has not been paid. Frequently in the past plaintiff made special audits or procured additional information from the records of the company at the request of Freeman, for all of which the company paid. Before August 23rd the witness worked six and three-fourths days, of which two or three days were spent at the company office and during the remainder of the time he was in his office, awaiting further instructions from Freeman.
Freeman died before the trial and his executrix was substituted as a defendant, as indicated by the above caption. Her counsel moved to strike the above witness' testimony concerning his telephone conversation with Freeman insofar as it may have supported an inference that Freeman was assuming personal liability, upon the ground that the witness is interested, as it developed that he shared in plaintiff's profits, and the testimony is inadmissible under Section 26-402 of the Code of 1952, known as the 'dead man's statute.' The court took the objection and motion under consideration and later refused to exclude the testimony.
Upon conclusion of the above evidence for the plaintiff, which was its case, counsel for Mrs. Freeman as executrix renewed the motion to strike the testimony of Matthiessen as to his telephone conversation with Freeman. He also moved for nonsuit upon the ground that the evidence showed that plaintiff was employed by Freeman in the latter's capacity as an officer of King Pontiac Company, Inc., as was done in the past and the bills for the auditing services paid by the company. Both of the motions were refused by the court.
For the defendant, King Pontiac, Matthews testified...
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