LaFitte v. McNeel Marble Co.

The opinion of the Court was delivered by

The plaintiff, a citizen of this State, on July 1st, 1907, sued the McNeel Marble Company, a corporation of the State of Georgia, to recover $1,041.54 upon a contract for services, and on same day attached a debt of $1,136.41 due by Mary E. Seigler to the McNeel Marble Company and a debt of $113.50 due by H. E. Vincent to said company. The sheriff collected these *384 debts and held the money subject to the attachment. The McNeel Marble Company having failed to appear or answer, on proof of claim by plaintiff, judgment by default was entered against it on October 7, 1907.

The appellants, R. W. Dodgen, R. M. McNeel, M. L. McNeel and E. B. Fryor, as a partnership doing business at Spartanburg, S. C., under the name of the McNeel Marble Company, on July 8, 1907, intervened in the above action, claiming that they were owners of the debts and money collected thereon by the sheriff, and not the Georgia corporation. The following issues were framed and sent to the jury at the Fall term, 1909.

“At the time of the levy of the writ of attachment in the above stated case was the McNeel Marble Company, which have intervened, the owners of the property claimed in the petition?”

Upon the trial of this issue the jury answered, “No,” and accordingly order was made applying the money to the judgment in favor of- plaintiff against the Georgia corporation and holding balance in sheriff’s hands subject to the order of the Court.

The intervenors appeal upon exceptions to the refusal of motion to continue, to the rulings as to admissibility of testimony, and to the charge to the jury.

1 Exception -1. Motion for continuance was made on the ground of the absence of Dodgen upon an affidavit from attending physician that he was quite sick and could not be present at the trial. The Court held that proper showing had not been made and ordered the case to trial, providing, however, that the testimony of Dodgen, as given on a former trial of this issue, should be put in evidence, and the Court actually excused the stenographer to go to Barnwell for his notes of the testimony, and the testimony was read. Motions for continuance, as has been often declared, are addressed to the discretion of the trial Court, and this Court will not interfere, except *385 in a clear case of abuse of discretion, which has not been shown in this case.

2 Exception 2. Contention is made that the witness, C. B. LaFitte, ought not to have been allowed to answer the question: “When you were at Bamberg trying to get that order for the marble company, what statement, if any, did you hear Dodgen making and to whom, about the connection between the Marietta house and the house you were working with?” on the ground that the relation of principal and agent cannot be shown by the declarations of an agent. The testimony was competent, ás the declaration of Dodgen, a party, as to the relation of ‘the Georgia corporation to the Spartanburg concern of the same name of which he was manager, the intervenors claiming that the two companies were separate and distinct and the plaintiff claiming that the Spartanburg concern was a mere branch of the Georgia corporation.

3 Exceptions 3, 4 and 6. The rulings complained of in these exceptions were correct, as it was not relevant to the issues to show what took place between the Spartanburg company and the Southern Marble and Granite Company, especially after the date of the attachment herein.

Exception 5. It would not have been error to exclude from evidence a form of a blank contract usually entered into between the Spartanburg company and its salesman, it appearing that plaintiff had made no such contract with the Spartanburg company. It appears, however, from the case, at folio 339, that the form of contract used by the Spartanburg company was admitted in evidence.

2 Exception 7. It was proper to allow the witness, Moore, to answer the question: “When the money came in from Spartanburg did you put it in the corporation coffers or divide it up between the fellows?” The witness, who was in the employ of the Georgia corporation as bookkeeper, answered: “We put it in the corpora *386 tion coffers,” and he further stated that it was not put to the credit of R. M. and M. L. McNeel and E. B. Eryor. The purpose of the testimony was to show that the Spartan-burg business was a branch or part of the business of the Georgia corporation and not a separate and distinct business.

Exception 8. For the same purpose it was also competent to permit the witness LaFitte to testify as to the acts of the Georgia corporation.

Exception 9. It is contended that the following was a charge in respect to matters of fact in violation of the Constitution :

4 “If Dodgen made to LaFitte admission, or did acts which led LaFitte to believe that he, LaFitte, was dealing with the Georgia corporation, which had many places of business, one at Spartanburg and other places.” It is claimed that this involved a statement that the Georgia corporation had a place of business at Spartanburg, a matter in issue. We do not so construe the charge. The clause beginning “which had” is associated with the preceding word “if,” and was intended as a hypothetical statement and not as a positive statement. The whole charge shows very clearly that this issue was left exclusively with the jury, without any intimation of the Court’s opinion on the subject.

Exception 11, exception 10 being abandoned. It is alleged that the Court charged as to the facts in the following instruction: “Even if the jury find that there was a’ partnership existing in Spartanburg called the McNeel Company, still, if they further find that such copartnership in placing the Vincent, Seigler jobs, acted as agent of the McNeel Marble Company, a Georgia corporation, then the verdict must be 'No,’ for a partnership can act as agent.” The point made is that the language “in placing the Vincent, Seigler jobs” is a statement of fact in issue, it being *387 a matter of dispute whether these jobs were placed by the Georgia corporation or the Spartanburg company. We think the statement fairly within the rule permitting a statement of fact hypothetically. Moreover, if it could be construed as a positive statement that the Spartanburg company placed these jobs it was favorable, rather than prejudicial, to appellant.

5 Exception 12. It is finally contended that the Court erred in refusing to charge the fifth request of appellant, as follows: “Before any person can rely upon the' plea of estoppel, it is encumbent on him to show by the preponderance of the evidence that the acts and conduct of the party they seek to estop were not only such as to mislead him, but that they were in fact misled to their prejudice and injury. Hence, if you find from the evidence in this issue that, notwithstanding the fact that C. B. LaFitte might have been misled as to who he was employed by, if he was, yet, if the company who really owes him stands ready and willing and able to have a full and just settlement, and he has not been misled so as to injure his rights, then the plea of estoppel must fail.”

The Court in the general charge and in response to other requests to charge, very fully and clearly stated the law as to estoppel. The instruction requested above was faulty in the latter part in stating that the plea of estoppel must fail “if the company who really owes him stands ready and willing to have a full and just settlement.” There was no testimony that the Spartanburg company were ready and .willing to pay the plaintiff’s claim as established against the Georgia corporation. The testimony for the Spartanburg company whs that they owed plaintiff between $200 and $250 and were ready and willing to settle. If there had been testimony that the Spartanburg company were ready and willing to pay plaintiff’s claim, that would not prevent plaintiff from holding to his right to the fund in Court, if *388 he could establish that the fund belonged to the Georgia corporation against which he had obtained judgment.

The judgment of the Circuit Court is affirmed.