Timmons v. McCutcheon, 0327

• Court: Court of Appeals of South Carolina
• Writing for the Court: SANDERS
• Citation: 284 S.C. 4,324 S.E.2d 319
• Parties: Herbert A. TIMMONS, Jr., Respondent, v. Andrew J. McCUTCHEON and Scranton Ready-Mix Concrete, Inc., Appellants. . Heard
• Docket Number: No. 0327,0327
• Decision Date: 24 September 1984

Page 319

324 S.E.2d 319 284 S.C. 4 Herbert A. TIMMONS, Jr., Respondent,
v.
Andrew J. McCUTCHEON and Scranton Ready-Mix Concrete, Inc.,
Appellants. No. 0327. Court of Appeals of South Carolina. Heard Sept. 24, 1984.
Decided Dec. 5, 1984.

[284 S.C. 6]

Page 321

T. Kenneth Summerford, Florence, for appellants.

E. LeRoy Nettles, Jr., Lake City, for respondent.

SANDERS, Chief Judge:

Respondent Herbert A. Timmons sued appellants Andrew J. McCutcheon and Scranton Ready-Mix Concrete, Inc., alleging a breach of contract. The jury returned a verdict against both McCutcheon and the corporation in the amount of $8,600. McCutcheon appeals, arguing the trial judge erred in failing to grant his motion for a directed verdict. The corporation appeals, arguing the trial judge erred in failing to grant its motion for nonsuit. In addition, both McCutcheon [284 S.C. 7] and the corporation argue the trial judge erred in allowing certain cross-examination of a witness. We affirm as to McCutcheon and reverse as to the corporation.

In an action at law tried by a jury, our authority on appeal extends only to the correction of errors of law. The jury's verdict cannot be disturbed on appeal unless the record discloses there is no evidence to support it. Broom v. Marshall, S.C.App. Opinion No. 0215 (filed July 2, 1984), citing Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). In deciding a motion for a directed verdict, the evidence and all reasonable inferences which can be drawn therefrom must be viewed in the light most favorable to the non-moving party. Broom. In ruling on a motion for non-suit, the trial judge must consider the evidence in the light most favorable to the party resisting the motion. Bain, Exr. v. Self Memorial Hospital, 281 S.C. 138, 314 S.E.2d 603 (S.C.App.1984).

The evidence here can be summarized as follows:

Timmons and McCutcheon formed a partnership by oral agreement to operate a business named "Scranton Ready-Mix." Timmons testified he invested a total of $9,000, $2,000 of which he paid directly to McCutcheon and the remaining $7,000 to a truck dealership as a part of the down payment on a cement mixer truck for the business. According to Timmons' further testimony, the partnership agreement was superseded by a subsequent oral agreement whereby he and McCutcheon agreed to dissolve the partnership and McCutcheon agreed to buy his interest by repaying him the $9,000 which he had invested, in return for his withdrawal from the business. Timmons testified he withdrew from the business based on this agreement and never agreed to forfeit his investment as McCutcheon alleged.

Timmons went on to testify that McCutcheon never paid him any part of the $9,000 as agreed, except for one payment in the amount of $400 by a check signed by McCutcheon and drawn on the account of "Scranton Ready-Mix Concrete."

A witness called by Timmons testified he was present during a conversation between Timmons and McCutcheon, in which McCutcheon promised to pay Timmons a business related debt but refused to sign a note evidencing that debt. This witness further testified he later delivered a message [284 S.C. 8] from McCutcheon to Timmons that Timmons should be patient in awaiting payment and not resort to a law suit.

A second witness for Timmons...