Winter v. U.S. Fidelity & Guaranty Co.

• Citation: 240 S.C. 561,126 S.E.2d 724
• Decision Date: 27 July 1962
• Docket Number: No. 17947,17947
• Court: United States State Supreme Court of South Carolina
• Parties: Marion F. WINTER, as Receiver for W. J. Branton and L. L. Branton, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., of whom U. S. Fidelity & Guaranty Company, Banks Construction Company, Inc., and Southern Equipment Sales Company, Inc., are, Appellants.

Page 724

126 S.E.2d 724

240 S.C. 561

Marion F. WINTER, as Receiver for W. J. Branton and L. L Branton, Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., of whom U S. Fidelity & Guaranty Company, Banks Construction Company, Inc., and Southern Equipment Sales Company, Inc., are, Appellants.

No. 17947.

Supreme Court of South Carolina.

July 27, 1962.

Barnwell, Whaley, Stevenson & Patterson, Sinkler, Gibbs & Simons, Charleston, Edgar L. Morris, Columbia, for appellants.

Winter & Winter, Columbia, for respondent.

MOSS, Justice.

Marion F. Winter, as the duly appointed receiver of W. J. Branton and L. L. Branton, by this action, seeks to marshall their assets for the benefit of creditors and adjust claims and liabilities of the siad Brantons, and is seeking to hold United States Fidelity & Guaranty Company liable on its bond guaranteeing the performance of the contract hereinafter referred to, and asks damages against the surety company for breaching and causing the breach of the contract; and is also seeking damages, in the alternative, against United States Fidelity & Guaranty Company, Banks Construction Company, and Southern Equipment Sales Company for breach of contract and causing the breach thereof, and damages resulting from a civil conspiracy.

It appears from the record that in the year 1956 Banks Construction Company, Inc., entered into a contract with the South Carolina State Highway Department for the furnishing of labor, equipment, materials for the construction of certain roads or highways in Charleston and Dorchester Counties, according to plans and specifications furnished by the said Highway Department. The United States Fidelity & Guaranty Company executed and delivered to the State Highway Department, as surety for said Banks Construction Company, Inc., a bond conditioned for the faithful and proper performance of the said contract.

Banks Construction Company, Inc., entered into a contract with L. L. Branton and W. J. Branton, whereby they argeed to build and construct all of the roads referred to in the contract of Banks Construction Company, Inc., with the State Highway Department, excepting however the surface treatment thereof, and was to be paid therefor the contract price, except ten percent thereof which was to be retained by said Banks Construction Company, Inc., as a share of the profits. The complaint alleges that the Brantons entered upon the performance of their subcontract and furnished a large and substantial portion of work, labor and materials for compliance with the contract, including additions thereto and alterations thereof, and as the work progressed, they furnished progress reports and estimates of work completed under supervision of and with approval of engineers of the State Highway Department, and received, from time to time, various payments on the said contract.

The complaint further alleges that Banks Construction Company, Inc., experienced financial difficulties, and because thereof defaulted in the payments due the Brantons and as a result thereof the Brantons defaulted in making payments to their creditors. It is then alleged that the United States Fidelity & Guaranty Company, as surety, took over the financing, supervision and management of certain affairs of Banks Construction Company, Inc., including the performance of the principal contract with the State Highway Department for the building of the roads and highways mentioned in the contract. It is further alleged that the United States Fidelity & Guaranty Company collected and appropriated to its own use the final payment for the construction of the said roads and highways mentioned in said contract, and the Brantons were not paid in accordance with their contract with Banks, and from payments that were made to the Brantons, more than ten percent was deducted and withheld in violation of their contract. It is then alleged that the Brantons have never been paid for extra work and material furnished by them. It is further alleged that the United States Fidelity & Guaranty Company, with full knowledge of the rights of the said Brantons, without notice to them, or with their consent, and in violation of their contract, moved equipment upon and commenced the completion of certain portions of the roads or highways included in the contract, thereby depriving the Brantons of their right to complete their contract and of the profit that would accrue therefrom. It is further alleged that the Brantons bought valuable and costly machinery for the purpose of performing their contract and that the only means of payment for such equipment was the installment payments to be received by them as the work under said contract progressed, and on accound of the withholding of payments and money due them by the said United States Fidelity & Guaranty Company, and its principal, Banks Construction Company, Inc., and by the wrongful acts of Southern Equipment Sales Company, Inc., all combining and concurring together, the Brantons lost the said machinery and equipment after they had acquired a large equity therein, and that they suffered great loss on account thereof and were forced out of the road contracting business. It is then alleged that the Brantons became financially embarrassed on account of the wrongful withholding of funds to which they were entitled under their contract. It is then alleged that Southern Equipment Sales Company, Inc., held a mortgage on certain equipment and road machinery belonging to the Brantons and that because of the financial embarrassment of the Brantons, the said Southern Equipment Sales Company, Inc., agreed to take one mortgage covering all of said machinery and equipment and to refinance and pay all outstanding obligations thereon and reduce the payments and allow a reasonable time for payments of said mortgage obligation, but after obtaining such mortgage, the said Southern Equipment Sales Company, Inc., breached its agreement and wrongfully took and possessed the said machinery and equipment from the Brantons and did, thereafter, fraudulently convert and appropriate to its own use all of said machinery and equipment.

The complaint asserts that the receiver for the Brantons is entitled to an accounting and a recovery of the amounts found to be due to the said Brantons on the road building contract. In addition, damages are sought against the United States Fidelity & Guaranty Company for breaching the contract and causing a breach thereof, resulting in loss of equity and equipment, and loss of business and profits.

It is also asserted that the parties having claims against the Brantons be directed to prove the same in this proceeding, and that the receiver, after the payment of the costs and expenses of the action, be directed as to the disbursement of the funds marshalled in this action.

In paragraph 18 of the complaint it is alleged that United States Fidelity & Guaranty Company, Banks Construction Company, Inc., and Southern Equipment Sales Company, Inc., colluded and conspired together to damage and injure the Brantons, and to deprive them of their machinery and equipment, and to breach their road building contract herein referred to, and to break them financially and put them out of the road building business and be destroy their established business, credit and good will, and that all of the wrongs, damage and injury herein alleged, were done and accomplished by and as a result of the conspiracy and the wrongful acts and conduct of each of the aforementioned parties, severally, and to the joint and concurrent acts, conduct, collusion and conspiring of either two or all of the said defendants, combining and concurring together without which said injury and damage would not have occurred, and by which all of the above mentioned results were accomplished. In the alternative, the receiver demands judgment against United States Fidelity & Guaranty Company, Banks Construction Company, Inc., and Southern Equipment Sales Company, Inc., or any two or all of them for the breach of the contract and causing the breach thereof in the amount of $200,000.00.

Southern Equipment Sales Company, Inc., one of the appellants herein, moved before the trial Judge to require the plaintiff to make paragraph 18 of the complaint more definite and certain in several particulars. The motion was refused and the appellant is before this Court upon a single exception, as stated by it, as follows:

'That His Honor erred in refusing to grant Paragraph 6 of Appellant, Southern Equipment Sales Company's Motion to Make More Definite and Certain, the error being that the Appellant was entitled to the information requested therein.'

The foregoing exception is entirely too general, vague and indefinite to be considered. It does not comply with Rule 4, Section 6, of this Court, which provides, as follows:

'Each exception must contain a concise statement of one proposition of law or fact which this Court is asked to review, and the same assignment of error should not be repeated. Each exception must contain within itself a complete assignment of error, and a mere reference therein to any other exception then or previously taken, or request to charge will not be considered. * * *'

We have held in many cases that every ground of appeal ought to be so distinctly stated that the Court may at once see the point which it is called upon to decide without having to 'grope in the dark' to ascertain the precise point at issue. We have often held that the proper office of an exception is to point out some specific error complained of, and that an exception faulty in this respect will not be considered. The objection of an exception is to present some distinct principle or question of law which the appellant claims to have been violated by the Court in the trial of the case from which the appeal is taken and to present it in such form that it may be ...