Terry v. Brashier, 19859

• Citation: 207 S.E.2d 82,262 S.C. 639
• Decision Date: 15 July 1974
• Docket Number: No. 19859,19859
• Court: United States State Supreme Court of South Carolina
• Parties: Myra W. TERRY, Executrix of the Estate of James C. Terry, Appellant, v. Lawrence E. BRASHIER, Respondent.

Page 82

207 S.E.2d 82

262 S.C. 639

Myra W. TERRY, Executrix of the Estate of James C. Terry, Appellant, v. Lawrence E. BRASHIER, Respondent.

No. 19859.

Supreme Court of South Carolina.

July 15, 1974.

Horton, Drawdy, Marchbanks, Ashmore, Chapman & Brown, Greenville, for appellant.

Melvin K. Younts, of Younts, Reese & Cofield, Greenville, for respondent.

BUSSEY, Justice:

This is an equitable proceeding commenced by plaintiff's testate, James C. Terry, on October 19, 1972 and continued by his executrix, as substituted plaintiff, after the death of said Terry in early February, 1973. The complaint sought the dissolution of an alleged partnership between Terry and the respondent, an accounting, appointment of a receiver and other incidental relief. The cause was referred to the Master in Equity for Greenville County and the appeal here is from an order of the Greenville County Court affirming a report of the Master wherein it was found and held that no partnership relation existed between the parties.

The sole question upon appeal is whether the lower court erred in finding that the plaintif had failed to prove the existence of a partnership. Both the appellant and respondent recognize that while this Court has the power and jurisdiction in appeals in equity to find the facts in accord with its view of the preponderance or greater weight of the evidence, nevertheless, the settled general rule is that findings of fact by a Master, concurred in by the trial court in an equity case will not be disturbed by the Supreme Court on appeal unless it appears that such findings are without evidentiary support, or against the clear preponderance of the evidnce. See numerous cases collected in West's South Carolina Digest, Appeal and Error, k1022.

In our view only a relatively brief statement of the high-lights of the case, gleaned from a rather voluminous record and numerous exhibits, is essential to a decision of the appeal. J. C. Terry and his wife, Myra, lived on a farm in lower Greenville County and had no children of their own. They adopted by deed, but not a court decree, a daughter, Dorothy, whom they raised as their only child; they apparently not realizing that they had failed to legally adopt her until sometime later. In 1947 the daughter Dorothy married the respondent in this case, Brashier; the Brashiers living for the first year of their married life in the home of the Terry's. Thereafter they moved into a smaller home on the Terry farm. A portion of the farm, where the Brashiers lived, was later conveyed to Mrs. Brashier. Brashier at the time of his marriage was employed in the textile industry but gradually went into farming.

About 1955 Brashier and Terry each owned about five or six cows, each selling some milk commercially. In the fall of that year the two combined their herds and equipment, but under no formal written or oral agreement. This dairy operation on the Terry farm, small in its inception, had grown until in 1972 the dairy herd numbered about 50, not counting calves and dry cattle. When the two small herds were combined in 1955, or 1956, Mr. Terry was preparing to start drawing social security and to at least partially, if not completely, retire. Within a year or two thereafter, he ceased farming all together and the evidence is conflicting as to how much he worked about the dairy business although clearly he worked less and less as the years went along. No one other than Terry and Brashier knew precisely what agreement, if any, they had between them for the operation of the dairy, but from the inception, so far as the public was concerned, the dairy...