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TAYLOR v. CECIL'S

April 10, 1956

JAMES R. TAYLOR, TRADING AND DOING BUSINESS AS TAYLOR'S PLUMBING & HEATING, RESPONDENT,
v.
CECIL'S, INCORPORATED, ET AL., OF WHICH THE TRUSTEES OF SPARTANBURG COUNTY SCHOOL DISTRICT NUMBER TWO, ARE APPELLANTS.



The opinion of the court was delivered by: Stukes, Chief Justice.

April 10, 1956.

The Trustees answered that they have paid the prime contractor, Cecil's, the full contract price, but the work referred to in the complaint was not authorized, approved or accepted by them and is unsatisfactory, has been refused by them and by the State Finance Commission, wherefore they prayed dismissal of the complaint as to them.

Cecil's answered, admitting the contract in the amount of $232,000.00, and that changes and additions were made at the direction of the Trustees for an additional contract price of $14,594.68, which latter amount has not been paid, although demanded, and the Trustees have accepted the building; the plaintiff-subcontractor has been paid the subcontract price and also $1,870.48 on account of changes which were authorized by the Trustees, but the latter are still owing Cecil's $14,594.68 for the changes and additions. The answer further pleaded performance of the contract and additions and that the building has been accepted by the Trustees. It was also alleged that Montgomery & Crawford Company, Inc., and Noland Company, Incorporated, claim unpaid balances in specified amounts for materials furnished plaintiff, whereby it was prayed that those corporations be impleaded and made parties, and judgment was demanded against the trustees in the amount of $14,594.63.

Montgomery & Crawford Company, Inc., and Noland Company, Incorporated, were made parties-defendant by order of the court and allowed to answer or otherwise plead. Sections 10-219 and 10-707, Code of 1952.

The Trustees "answered" the answer of Cecil's denying that any balance was due the latter and denying that any additions to the contract were authorized or accepted by them, and reiterating that the work of plaintiff was unsatisfactory and had been refused by them and by the State Finance Commission.

Montgomery & Crawford Company, Inc., answered and counterclaimed, and prayed judgment against plaintiff, against Cecil's, against the Trustees and the Surety Corporation in the sum of $3,302.37 for materials furnished plaintiff and used by him in the construction of the building, and itemized and verified statement of account was attached to the answer.

The Trustees "answered" the answer and counterclaim of Montgomery & Crawford Company, Inc., by, in effect, denying the allegations of them.

Cecil's filed an "answer" to the counterclaim of Montgomery & Crawford Company, Inc., wherein the material allegations of it were denied.

Noland Company, Incorporated, also answered and counterclaimed for the amount of an account for materials furnished by it to plaintiff and used in the construction of the building, but this defendant has since been paid in full and no longer has any interest in the controversy.

Reply was filed by plaintiff to the counterclaim of Montgomery & Crawford Company, Inc., claiming errors in the latter's account, of which strict proof was demanded; and further that discounts were promised on plaintiff's purchases of materials for this building and three other buildings, which discounts had not been credited and they would more than offset the amount of the account; the prayer of the reply concluded as follows: "that the counterclaim of the defendant, Montgomery & Crawford Company, Inc., against this plaintiff be dismissed and that Montgomery & Crawford Company, Inc., be required to account to the plaintiff for the discounts which they failed to credit to his accounts, and for such other and further relief as is just and proper."

The most of the stated pleadings are prolix; the foregoing is but a brief summary and is intended to be a construction of them only to the extent necessary for the consideration of the appeal.

Over the objection of the Trustees, the other parties to the action assenting, a general order of reference was made whereby all issues were referred to the Master to take the testimony and report his findings of fact and conclusions of law. It was concluded by the court that the answers raised equitable issues and that the numerous transactions would involve long and tedious accounts, which warranted reference rather than trial by jury. The Trustees have appealed.

The appeal will have to be sustained. The action is at law and the pleadings do not indicate such long and complicated accounts that it would not be practicable for a properly instructed jury to comprehend and adjust the issues between the parties. An account must not only be long, but so complicated as to be beyond the comprehension and finding of the jury, in order for the action to be compulsorily referable. Sumter Hardwood Co. v. Fitchette, 133 S.C. 149, 130 S.E. 881. Moody v. Dudley Lumber Co., 136 S.C. 327, 134 S.E. 369. Georgian Co. v. Britton, 141 S.C. 136, 139 S.E. 217. Jefferies v. Harvey, 206 S.C. 245, 33 S.E.2d 513. Beaty v. Massey-Hite Grocery Co., 211 S.C. 242, 44 S.E.2d 535, 174 A.L.R. 418. DePass v. Piedmont Interstate Fair Ass'n, 217 S.C. 38, 59 S.E.2d 495. Marion Cotton Oil Co. v. Townsend, 222 S.C. 32, 71 S.E.2d 500. The only "accounting" referred to in the pleadings here is that in the reply of plaintiff to the counterclaim of Montgomery & Crawford Company, Inc., the prayer of which is quoted in part above and which contends ...


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