Speizman v. Guill

• Decision Date: 10 May 1943
• Docket Number: No. 15539.,15539.
• Citation: 25 S.E.2d 731
• Court: South Carolina Supreme Court
• Parties: SPEIZMAN. v. GUILL.

25 S.E.2d 731

SPEIZMAN.

v.GUILL.

No. 15539.

Supreme Court of South Carolina.

May 10, 1943.

Appeal from Common Pleas Court, of Richland County; A. W. Holman, County Judge.

Action by Morris Speizman against Berlin J. Guill to assert certain rights under a conditional sales contract concerning balance of purchase money for laundry and cleaning machinery and equipment, wherein defendant counterclaimed. From a general order of reference issued on plaintiff's motion, defendant appeals.

Affirmed.

The order of Judge Holman directed to be reported follows:

This is an action to foreclose a chattel mortgage and the motion before me is to refer the cause to the Master.

The defendant sets forth in his answer a counterclaim and asks judgment against the plaintiff. The defendant takes the position that by reason of his counterclaimhe is entitled to a jury trial and calls the Court's attention to the Code and also to the case of Woodruff Machinery Manufacturing Co. v. Timms, 93 S.C. 99, 76 S.E. 114. The case cited holds that a defendant has the right to interpose a counterclaim, but does not make any holding with reference to the question of a jury trial. Of course, the defendant has the right to interpose a counterclaim, but the latest case on the question of the right to a trial by jury is that of Aiken Mortgage Co. v. Jones, 197 S.C. 245, 15 S.E.2d 119, 121, in which the Court held as follows:

"It is governed by the rule clearly set forth by Chief Justice McIver in the opinion of this court in Sullivan Hardware Company v. Washington, 47 S.C. 187, 25 S.E. 45. That was a case for the foreclosure of a mortgage given to secure notes made for the purchase money of machinery. The defendants pleaded failure of consideration and a counterclaim for damages sustained by reason of the failure of the machinery to measure up to the warranty, whereby defendants lost time and business. The defendants appealed from the refusal of the trial judge to transfer the case to calendar 1 for the trial of the issues raised by their counterclaim and the question was, as here, whether the defendants were entitled to demand a trial by jury. The answer was in the negative, that the defense lay at the foundation of plaintiff's equitable cause of action and the issues must be tried in the Court of Equity in which the action was brought.

"For the latter decision there was cited as authority McLaurin v. Hodges, 43 S.C. 187, 20 S.E. 991. That case was also for foreclosure; the defense of usury was interposed and recovery of double the amount paid as interest was sought by the defendants. The refusal of a reference was held error and it was said that since the defense entered into plaintiff's equitable cause as a part of the transaction it must be subject, for its trial, to the same forum.

"To the same effect are the following decisions of this court, some of which were suits for specific performance: Welborn v. Cobb, 92 S.C. 384, 75 S.E. 691; Mobley Co. v. McLucas, 99 S.C. 99, 82 S.E. 986; Singleton v. Cuttino, 107 S.C. 465, 92 S.E. 1046; Murph v. Smoak, 113 S.C. 168, 101 S.E. 844; Farley v. Matthews, 168 S.C. 294, 167 S.E. 502; Spencer v. National Union Bank, 192 S.C. 355, 6 S.E.2d 755. An interesting annotation is found in 89 A.L.R. 1391. Several decisions from this State are cited to support the general rule which is there stated as follows: 'The great weight of authority is to the effect that the interposition by the defendant in an equitable action, of a counterclaim of a legal nature, gives him no right to a jury trial, either of the case generally or of the issue raised by the counterclaim.' "

It is, therefore, my opinion that I am bound by the Aiken Mortgage Company case. However, if upon the hearing before the Master it be developed that there is an issue for a jury to pass upon the Master may so recommend to this court.

It Is, Therefore, Ordered that the case be referred to Hon. Harry M. Lightsey, Master for Richland County, to hear and determine all the issues of law and fact and to report all special matters with all reasonable diligence and to make any recommendations he may see fit regarding any issue or issues of fact to be submitted to a jury.

C. T. Graydon and F. Ehrlich Thomson, both of Columbia, for appellant.

Melton & Belser and T. P. Taylor, all of Columbia, for respondent.

WM. H. GRIMBALL, Acting Associate Justice.

This action was commenced by plaintiff against defendant to assert certain rights claimed by plaintiff concerning a balance of purchase-money alleged to be secured by certain laundry and cleaning machinery and equipment, sold by plaintiff to defendant under a conditional sale or title-retention contract. Whether those rights, as set forth in the complaint, constitute a legal or an equitable cause of action is the question. The defendant answered admitting certain allegations of the complaint, denying other allegations and setting up a counterclaim for damages for alleged delay, failure to deliver some of the parts, defects and unfitness for use of certain parts and in other respects, to his damage in the sum of three thousand dollars.

Plaintiff thereafter moved for an order referring the cause to the Master to take testimony, which defendant opposed. The Judge below issued a general order of reference. Let it be reported. From such order this appeal has been taken by defendant.

The respective parties are in disagreement as to the character of the action and the nature of the cause of action set forth in the complaint. However, in the appeal briefs both sides have stated the questions for decision upon this appeal in the same words, as follows:

"I. Does the complaint set forth a cause of action for the recovery of personal property or does it set forth a cause of action for the foreclosure of a chattel mortgage?

"II. Did the trial Judge err in granting a compulsory general order of reference under the facts and circumstances of this case?"

In order to determine the character of the cause of action it is necessary to examine the complaint, which is as follows:

"The plaintiff above named complaining of the defendant herein alleges:

"(1). That the defendant, Berlin J. Guill, is a resident of the County of Richland, State of South Carolina, and is now and was at the times hereinafter mentioned doing business in or near the City of Columbia, S. C, as the Crown Cleaners and Laundry. That the property hereinafter mentioned is located in Richland County and is within the jurisdiction of this Court.

"(2). That heretofore on or about the 8th. day of July, 1941, the defendant purchased various pieces of dry cleaning equipment from the plaintiff for which he agreed to pay the sum of Twenty-nine Hundred and One and 25/100 ($2901.25) Dollars. Of this sum Five Hundred ($500.00) Dollars was paid upon delivery of the equipment and the sum of Twenty-four Hundred and One and 25/100 ($2401.25) Dollars was payable in twenty-four (24) successive monthly installments as follows:

"Seventy-five ($75.00) Dollars a month for three (3) months. One Hundred ($100.00) Dollars a month for eighteen (18) months. One Hundred Twenty-five ($125.00) Dollars a month for two (2) months and One Hundred Twenty-six and 25/100 ($126.25) Dollars for one month.

"Said installments being payable on the 7th., day of each and every month from the date of the instrument until the balance of Twenty-four Hundred and one and 25/100 ($2401.25) Dollars was fully paid, the unpaid balance to bear interest at the rate of six (6%) per centum per annum and from maturity at the highest lawful rate.

"(3) That in order to secure the payment of the purchase price of said fixtures, the defendant on the same day, to wit: July 8, 1941, did make, execute and deliver to the said Morris Speizman his certain conditional sales contract and did by way thereof convey, sell and assign to this plaintiff the following chattel property, to wit:

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                |1 |Prosperity Flat Work Press, Lot No. 1094, Serial No. 61340.|
                |--|-----------------------------------------------------------|
                |1 |Rebuilt 32 x 48 Washer, Lot No. 1064.                      |
                |--|-----------------------------------------------------------|
                |1 |Collar & Cuff Prosperity Press, Lot No. 1115.              |
                |--|-----------------------------------------------------------|
                |1 |Electric 7½ h.p. 3/60/220 V. Motor.                       |
                |--|-----------------------------------------------------------|
                |15|Foot Shafting 1-11/16" bore at 25¢ per foot.              |
                |--|-----------------------------------------------------------|
                |3 |15" Hangars at $3.50 each.                                 |
                |--|-----------------------------------------------------------|
                |2 |Drive Pulleys at $3.50 each.                               |
                |--|-----------------------------------------------------------|
                |1 |Large Master Pulley.                                       |
                |--|-----------------------------------------------------------|
                |1 |American 30" Extractor, belt driven.                       |
                |--|-----------------------------------------------------------|
                |1 |Talley 36 x 96 Wood Washer (used).                         |
                |--|-----------------------------------------------------------|
                |1 |New Bosom Press, Model NLB-1.                              |
                |--|-----------------------------------------------------------|
                |1 |New Double Sleever (DS-1).                                 |
                |--|-----------------------------------------------------------|
                |1 |Heubsch Tumbler.                                           |
                |--|-----------------------------------------------------------|
                |1 |Prosperity 39" tapered buck foot power press.              |
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"(4) That said conditional sales contract was filed for record in the office of the Clerk of Court for Richland County, State of South Carolina, in Chattel Mortgage Book number 228, at page 424, on the 11...