The opinion of the court was delivered by: Legge, Associate Justice.
Charles J. Franks brought action on February 4, 1955, in the Court of Common Pleas for Cherokee County, against: I.Q. Anthony; Frank W. Sossamon, Jr. and Louis Sossamon, doing business as Sossamon Construction Company; and Wade S. Weatherford, Jr. and William E. Bell, Trustees. Two demurrers to the complaint were interposed, — one by Frank W. Sossamon, Jr., and Louis Sossamon, doing business as Sossamon Construction Company and the other by Weatherford and Bell. Appeal is from an order of the resident Circuit Judge, dated February 8, 1956, sustaining both demurrers.
The complaint alleged in substance:
1. That plaintiff and the defendant Anthony, as partners, operated a "plumbing and electrical contracting and retail store" in Gaffney, S.C. under the name of Anthony & Franks, from 1944 until January 1, 1952, when the partnership was dissolved.
(a) Franks conveyed to Anthony all of his right, title and interest in the material and supplies allotted to Anthony, and Anthony likewise conveyed to Franks his interest in the material and supplies allotted to Franks, allotment of certain motor vehicles being set out in detail;
(b) All accounts receivable should be divided equally between the parties as collected, "and either party hereto may collect, but before suit is brought by either, agreement shall be reached but should there be disagreement as to collection by suit then the one refusing to bring suit must purchase the said account at face value or allow the said suit to be brought in the partnership name";
(c) Each partner should have an itemized list of each account receivable; and
(d) Neither party should operate under the name "Anthony & Franks" or display any signs or lettering bearing that name, and all such signs or lettering should be removed within one week after the execution of the agreement.
3. That in violation of the said agreement, Anthony had neglected to remove the name of "Anthony & Franks" from the building in which the partnership had formerly operated and which he, Anthony, now possessed.
4. That Anthony had refused to account to the plaintiff for the partnership funds and accounts receivable.
5. That there had been owing to the partnership at the time of its dissolution, by Cherokee Heights, Inc., a corporation in which the defendant Anthony and his co-defendants Frank W. Sossamon, Jr., and Louis Sossamon were officers, a debt of several thousand dollars, the exact amount being unknown to the plaintiff; that on March 28, 1952, after threat of a mechanic's lien against its housing project, on which the partnership had done considerable work, Cherokee Heights, Inc., had executed in favor of the partnership a "postponement of mechanic's lien", a copy of which was attached to the complaint as part thereof; and that the plaintiff "is entitled to an accounting on this matter". The "postponement of mechanic's lien" recited that the partnership of Anthony & Franks had performed plumbing and electrical work and had furnished materials in the construction of Cherokee Apartments, for which Cherokee Heights, Inc., was indebted to C.J. Franks and I.Q. Anthony "in an amount yet to be determined", for which the latter were entitled to file a mechanic's lien against said property; and concluded as follows:
"Know All Men By These Presents, That I, F.W. Sossamon, Jr., President of Cherokee Heights, Inc., for and in consideration of the said C.J. Franks forebearing from filing his mechanic's lien, do hereby agree and covenant to extend the time for the filing of the mechanic's lien above referred in favor of C.J. Franks until the 1st day of May, 1952, so as to allow the said C.J. Franks to file a mechanic's lien anytime after the 15th day of April and before the 1st day of May, 1952, in order for the said Cherokee Heights, Inc., may gain sufficient time to pay the said C.J. Franks for the same.
"Cherokee Heights, Inc. (Seal)