Rush v. Thompson

• Court: South Carolina Supreme Court
• Writing for the Court: PER CURIAM:
• Citation: Rush v. Thompson, 203 S.C. 106, 26 S.E.2d 411 (S.C. 1943)
• Decision Date: 26 July 1943
• Docket Number: 15566.
• Parties: RUSH v. THOMPSON. THOMPSON v. RUSH et al.

26 S.E.2d 411

203 S.C. 106

RUSH v. THOMPSON.

THOMPSON v. RUSH et al.

No. 15566.

Supreme Court of South Carolina

July 26, 1943

Appeal from Common Pleas Circuit Court, of Florence County; L. D Lide, Judge.

Action at law by A. N. Rush against J. M. Thompson, and equity suit by J. M. Thompson against A. N. Rush, D. N. Baker, and others. From an order that law action should be tried first and that equity suit should be stayed until further order of court and denying certain other motions of the parties, J. M Thompson appeals .

The order of Judge Lide, referred to in opinion of Supreme Court and directed to be reported, is as follows:

The first case above stated will hereinafter be referred to as the law case, and the second case will hereinafter be referred to as the equity case. Mr. A. N. Rush, who is the plaintiff in the law case and the principal defendant in the equity case, will generally be referred to as Rush; and Mr J. M. Thompson, who is the defendant in the law case and the plaintiff in the equity case, will generally be referred to as Thompson.

The law case was commenced on January 14, 1942, to recover the sum of $75,000 damages for the alleged fraudulent breach of a contract between Rush and Thompson, and the answer to this complaint was in effect a general denial. The complaint however, was subsequently by consent amended, and a demurrer to the same was duly filed by Thompson, on the ground that it appeared on the face thereof that there was a defect of parties because Sinclair Refining Company was not made a party defendant; but the Court on hearing the demurrer overruled the same, as will appear by reference to order dated April 6, 1942, for while the law case is based upon an alleged contract between Rush and Thompson, which involved an agency contract to which the company was a party, there were no allegations tending to state any cause of action whatever against the company by reason of any breach of the agency contract or otherwise, and the company was not a party to the Rush-Thompson contract.

The answer of Thompson to the amended complaint sets up, in addition to what is in effect a general denial, affirmative defenses pleading the statute of frauds, lack of consideration, and that there is a defect of parties defendant, in that Sinclair Refining Company is not only a proper but a necessary and indispensable party to the determination of the rights of the plaintiff and of the defendant with reference to the subject matter of the suit. But it will be observed that Sinclair Refining Company was not made a party to the equity case.

The equity case was commenced on or about the 18th day of February, 1942, a little more than a month after the law case was instituted. The complaint in the equity case sets up three notes given by Rush to Thompson and secured by mortgages on certain lots of land in Olanta and Turbeville, respectively, and certain other evidence of indebtedness of Rush to Thompson. The complaint also in Paragraphs 13 and 14 refers to the contract between Rush and Thompson (doubtless the same contract mentioned in the law case but the allegations thereabout are different); and it is alleged in substance that this contract was merely a contract of employment upon a salary based on one-half of the net profits of the business, and that the contract had been terminated by Rush of his own volition. The complaint in Paragraph 16 thereof states the account between Thompson and Rush shows a balance due by Rush to Thompson of $2,977.13, as of May 15, 1939, and the prayer of the complaint is for a mutual accounting, foreclosure of mortgages, etc.

It should be stated that the defendants in the equity case other than Rush were merely made parties to the suit because they have or assert certain claims by way of mortgage and judgment liens against the property described in Paragraphs 3 and 6.

The answer of the defendant Rush to the complaint in the equity case sets up by way of defense the pendency of the law case, which is pleaded in abatement; that the equity case is merely a defense to the prior law case, and that Thompson should be required to set up all his defenses in the first action; and that the equity case should be held in abeyance until the final disposition of the prior action, to-wit, the law case.

And then reserving his right to move the Court to pass on his plea in abatement, abeyance, etc., the defendant Rush sets up certain affirmative defenses, the first of which admits with very slight variation all the allegations of the complaint with reference to the mortgages and other evidences of indebtedness of Rush to Thompson; and admits "that the items of credit and debit between the plaintiff and the defendant are substantially correctly set out as of May 15, 1939, except that the item designated as 'Salary' therein was the defendant A. N. Rush's half of the net profits of the business."

And in the second affirmative defense Rush sets out the contract as in the law case, and alleges that an accounting was had in full on or about May 15, 1939; and that Rush is not now indebted to Thompson, "his share of the profits of the business of the Sinclair agency under his agreement with the plaintiff having more than covered the balance due under the mortgages as set out in the complaint." And in the third affirmative defense it is alleged that no mutual accounting is necessary, as Rush admits the amount due as of May 15 1939, "and has tendered the amount due under the mortgages upon compliance by the plaintiff with his contract;" that foreclosure is premature under the contract; and...