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WYNN ET AL. v. CONEY ET AL.

February 12, 1958

L. R. WYNN AND HENRY C. BRUNSON, CO-PARTNERS, D/B/A WYNN AND BRUNSON, RESPONDENTS,
v.
ALBERT H. CONEY AND CARLTON G. DAVIES, CO-PARTNERS, D/B/A CONEY-DAVIES LUMBER COMPANY AND HAMPTONITE DOOR MANUFACTURING COMPANY, A CORPORATION, APPELLANTS.



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

February 12, 1958.

This action was instituted by L.R. Wynn and Henry C. Brunson, partners, trading as Wynn and Brunson, the respondents herein, against Albert H. Coney and Carlton G. Davies, partners, trading as Coney-Davies Lumber Company, the appellants herein, and Hamptonite Door Manufacturing Company.

The action is one brought for the purpose of recovering the balance due on the purchase price of certain lumber which the respondents assert that they sold and delivered to the appellants. It was alleged in the complaint that Coney-Davies Lumber Company and Hamptonite Door Manufacturing Company were engaged in business together under some arrangement, the details of which were unknown to the respondents.

The appellants denied that they were engaged in business with Hamptonite Door Manufacturing Company. They likewise denied that the lumber was purchased by them or that such was ever delivered to them.

The case was tried before the Honorable J. Woodrow Lewis, Presiding Judge, with a jury, and resulted in a verdict for the respondents against the appellants, Coney-Davies Lumber Company, in the sum of $6,457.76, and a verdict in favor of the defendant, Hamptonite Door Manufacturing Company.

There was attached to the complaint, and made a part thereof by reference, what purports to be an itemized sworn statement of the account for lumber sold and delivered by the respondents. This itemized statement was admitted in evidence, over the objection of appellants, as an exhibit under the circumstances hereinafter stated. At appropriate stages of the trial the appellants moved for a nonsuit, directed verdict, judgment non obstante veredicto, and, in the alternative for a new trial. All of these motions were refused by the trial Judge.

The appellants are before this Court on seventeen exceptions to the judgment of the lower Court. These exceptions pose two questions: (1) Did the Court commit error in admitting in evidence the statement of account attached to the complaint? (2) Was there any competent evidence offered by the respondents on which the Court could correctly refuse the motion of the appellants for a nonsuit, directed verdict or judgment non obstante veredicto?

Attached to the complaint and made a part thereof by reference was a statement of the alleged account for the lumber sold and delivered by the respondents to the appellants.

This statement shows that between May 17, 1954 and August 27, 1954, inclusive, that the respondents sold and delivered lumber at a sales price of $11,624.92 to the appellants. The statement also shows credits for $5,167.16, leaving a balance due the respondents of $6,457.76.

Henry C. Brunson, one of the respondents, testified that sometime prior to May 17, 1954 he was called to the offices of Hamptonite Door Manufacturing Company, and at that time had a conference with Albert H. Coney, one of the appellants, and with one Williams, who was the general manager of Hamptonite. He testified that Coney wanted him to cut the lumber and deliver it to Hamptonite. He testified that he agreed to cut the lumber on a weekly basis and make up the tally sheets and turn them into the office. He also testified that Coney asked him to deliver the lumber to Hamptonite and that the appellants would pay the respondents for it. He further testified that he sold the lumber to the appellants and delivered it according to the agreement to the Hamptonite plant. L.J. Williams, the manager of Hamptonite testified in behalf of the respondents and confirmed the testimony of Henry C. Brunson. He testified that the appellants bought the lumber and, in turn, sold it to Hamptonite.

The respondent, Henry C. Brunson, also testified that as lumber was delivered to the appellants a tally sheet was prepared, and on Friday of each week these were turned into the office of Hamptonite, in accordance with the agreement between the parties, for the purpose of getting pay for the lumber so sold and delivered. He further testified that he kept no other records of the transactions and that all records of the amount of lumber delivered by him were turned over to the various parties at the offices of Hamptonite. He further testified that when the appellants did not pay for the lumber, and before suit was brought, that he, with his attorney, went to the offices of Hamptonite and copied from the original records the information contained in the statement attached to the complaint. This witness was questioned by the Court about the records from which the statement was prepared. We quote:

"The Court: Did you have any records in your possession upon which this account is made up? A. No, sir. What I did with these, I turned the whole thing over to them to get my pay check every Friday morning.

"The Court: You have no original records in your possession upon which that is based? A. No, sir.

"Mr. Rivers: I submit that the best evidence is the record from which this was taken.

Mr. Murdaugh: I have served notice to get it on both Defendants and Mr. Brunson has testified that he turned them over to the Defendants and they bring three days of tallies in.

"Mr. Rivers: I submit that Mr. Brunson cannot testify to this unless he made it himself.

"Q. State whether after you employed me I went to the books with you and

"Mr. Rivers: I submit Counsel should not lead the witness.

"The Court: Yes, don't lead him.

"Q. What was done about how this was made up? A. We went to the ...


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