Volume 122 — South Carolina Reports

Before Moore, J. Marlboro. Action by W. T. Rawleigh Company against D. B. .Thompson, William Rogers, and Solomon Arkle. Judgment for plaintiff, and defendants Arkle and Rogers appeal. cites: Invoice not proof of sale and delivery: 23 Cyc., 351; 91 U. S., 618. Principal and guarantors cannot be sued jointly: 12 R. C. L., 1094, Sec. 48; 31 R. R. A. (N. S.), 149; 98 S. E., 414; 47 Am. Rep., 599; 24 Ill., 132; 33 Am.

<p>Before Prince, J. Jasper. November, 1921.</p> <p>Action by C. L,. Vann against Jasper County. - From a, judgment of the Circuit Court reversing the judgment of the. County Board of Commissioners in favor of defendant, it appeals.</p> <p>The following is the decree of the Court below:</p> <p>This matter comes before me on appeal from the judgment of the County Board of Commissioners of Jasper Countv, refusing to approve for payment the bill of appellant, Charles T. Vann, for services rendered and expenses incurred in auditing the books of the officers of Jasper County. It appears that on the-day of-1919, the grand jury of Jasper County, acting through their foreman, entered into a contract with the appellant, a certified public accountant, whereby they employed him to audit the books of the County officers for a period of three years, ending June 30, 1919, he agreeing to do the work at a given rate per diem and expenses. The appellant duly made the audit and presented to the grand jury a report of his findings, together with his duly verified bill for salarv and expenses, amounting to $998.52, the bill being dated November 24, 1919. •' ,</p> <p>The report and bill were approved by the grand jury and the bill turned over to the County Supervisor with the request that it be paid. Some attempt has been made in the argument before me to show that the report and bill were never properly submitted to and approved by the grand jury, but I think the evidence before the County Commissioners was amply sufficient to establish these facts. The County Commissioners took no action on the claim, neither allowing nor disallowing it, for more than a year and a half after it was presented. Correspondence between the appellant and the County Supervisor put in evidence at the hearing before the County Commissioners, and the uncontradicted testimony of the witnesses on that occasion, would make it appear that the Commissioners gave no reason for their refusal to act beyond stating that certain County officers were displeased with appellant’s report. The fact was not referred to in the testimony before the County Commissioners, but it was admitted by counsel in argument before me that the board finally acted on the claim only in obedience to an order of mandamus issued by this Court upon application of the appellant. At a hearing held on July 29, 1921, the appellant appeared in person before the County Board of Commissioners and testified to the justness and correctness of his claim, as did also the foreman of the grand jury, who made the contract with appellant. There was no testimony offered in rebuttal. The County Board, however, refused the claim and denied payment thereof, and from this judgment the appellant appeals, on the ground that it is “contrary to the law and the manifest weight of the evidence.”</p> <p>The uncontradicted evidence shows that the grand jury contracted with the appellant to do certain work, rhat he did the work to the satisfaction of the grand jury, and that he never has been paid for doing it. The judgment of the County Board stated no reason for refusing to pay the claim, but in the argument before me, counsel for the Board stated that this refusal was due to the fact that the contract between the grand jury and the appellant was not made in accordance with the provisions of Section 4034 of the Civil Code of 1912, which reads:</p> <p>“Grand Jury May Employ Expert Accountant. — Grand Juries may, whenever in their judgment it becomes necessary, employ one or more expert accountants to aid them to examine and investigate the offices, books, papers, vouchers and accounts of any public officer of their respective counties, and to fix the amount of compensation or per dieni to be paid therefor, upon the approval of the presiding or Circuit Judge, given before any expert is employed.”</p> <p>Counsel for the County Board maintains that they had no right to approve the claim because it was based on a contract not approved in advance by the presiding or Circuit Judge. The foreman of the grand jury testified that thv presiding Judge in his general charge told them that it would be advisable to employ an accountant to audit the County officers’ books and that they were authorized to employ an accountant for the purpose. Counsel for the appellant argues that this was sufficient compliance with the Statute. In my view of the case it is not necessary for me to decide this question. It may be that the Statute did contemplate a more definite expression by the presiding Judge of his approval of a contract with an accountant, but, even'if the appellant’s contract was defective in this respect, I do not think the defect should be held fatal. It is uncontested that the grand jury and the appellant contracted in good faith, believing that they were acting in accordance with the law, that he-fully complied with his contract, and that the County has received the benefit of his services without any payment for them. The amount of the claim -is not in dispute, and it is not suggested that the grand jury attempted to spend the County’s money uselessly. Such being the case, I do not think that the County Board of Commissioners is justified in refusing the claim upon a narrow technical ground. Even if the grand jury contracted without the approval of the Judge, as required by the Statute, I see no reason why the defect cannot now be supplied and the contract approved by this Court. Justice demands that this be done, and I do now approve the contract in question and the appellant’s claim as of the date when it was presented. Accordingly it is ordered, adjudged, and decreed that the judgment of the County Board of Commissioners be, and the same is hereby' reversed and that the appellant, Charles E. Vann, have judgment against the County of Jasper in the sum of $998.52, together with the costs of this appeal.</p> <p>cite: Law. governing employment of expert: 1 Civ. Code 1912, Sec. 4034.</p> <p>cite: Presumption of legality: 22 R. C. E., 472, 474. Value received: 28 R. C. E., 673; 73 S. C., 83; 103 S. C, 169; 62 N. Y. Supp., 726. Findings of fact not subject to ap*peal: 40 S. C., 276; 53 S. C., 46. Provision requiring Judge’s approval in advance is directory: 25 R. C. L., 769; 9 Rich. Eq., 521; 33 S. C., 562, 580. Court may sustain where showing would have moved Court to authorise: 2 McC. Eq., 185; 82 S. C, 109.</p>

Before Memminger, J., Allendale. May, 1922. Held: by implication, to hold the legal title to the property which he is directed to convey. 2 Underhill on Wills, § 781; 1 Perry on Trusts, § 262; 2 Pomeroy’s Equity Jurisprudence (2d Ed.), § 1011; Hale v. Hale, 125 111., 299; 17 N. E., 470; Olcott v. Tope, 213 III, 124, 72 N. E., 751.” In 5 Ruling Case Eaw, p. 314, the rule is stated as…

Before MclvER, J. Dillon, July Term, 1920. Action by S. D. Lane against Bell Lumber Co. From judgment for plaintiff the defendant appeals. • cite: Case controlled by 114 S. C., 41. Law as to fixtures: 31 S. C., 276. Possession is constructive notice to purchaser of a holding under an equitable right of title: 22 S. C., 32.

Before Wilson, J., Richland, October, 1920. Action by S. B. McMaster against Ford Motor Co. and others. Judgment for plaintiff and the Ford Motor Co. and Universal Auto Co. appeal. cite: Act which if'done by one would not be actionable, will not be made actionable if done by several by agreement: 24 How., 407; 37 E. R. A., 455; 58 E. R. A., 135; 91 N. Y. S., 185.

Before SeasE, J. Spartanburg. Kate Epps, alias Cat Epps, indicted with Will Bobo for assault and battery with intent to kill. Upon conviction of both, Epps appeals. cite: Presence at crime does not make one a principal unless he aided and abetted: 16 C. J., 132. No distinction between principals in the first and second degree: 18 S. C., 177; 51 S. C., 284; 79 S. C., 73. If two act in concern both are principals: 70 S. C., 73.

<p>Before MoorE, J., Laurens, October, 1920.</p> <p>Action by Thomas M. Shaw against Bessie D. Shaw and Mildred Long. Decree for defendants and plaintiff appeals.</p> <p>cite: Residence of husband is residence of wife: 40 R. R. A. (N. S.), 99; 16 R. Ed., 226; 201 U. S., 562; 76 S. C., 145; 67 Mo. App., 570. Liability of husband for support of wife and children away from domicile: 114 S. ,C., 191. Agreement to pay money during separation is without consideration: 44 S. C., 195; 9 R. C. R., 256-7; 23 Ind. App., .384; 125 U. S., 190; 47 R. Ed., 366. Relief granted must be within scope of pleadings:. 71 S. C., 442; 1 Black Judg., Sec. 242 ; 34 N. J. R., 418; 140 U. S., 254. Agreement facilitating a divorce contrary to public policy: 113 S. C., 295.</p> <p> Oral argument. </p>

Before Rice, J., Barnwell, 1919. - John N. Matheney and others indicted for disturbing religious worship, and upon conviction appeal. cites: Prosecution under Secs. 703, 158, Criminal Code 1912: Penal Statute must be strictly construed: 32 S. E., 466; 80 S. E., 742; 96 S. E., 5; 91 S. C., 377. Disturbance must be during service: 9 A. & E. Ene.

Before DeVorE, J., Aiken, March, 1922. Action by Southern Coal Co. against P. J. Rice and E. B. Satcher, partners as Rutherford & Co. Directed verdict for plaintiff, and defendants appeal. cite: Instruments executed same day, relating to same subject matter, constitute single contract: 9 Cyc., 580-1; 23 R. C. L., 1329; 6 R. C. L., 850; 24 R. C. L-, 154-5; 34 S. C., 309; 48 A. S. R., 353; 148 Mass., 608; 26 A. S. R., 896; 105 S. C., 120.

Before Sease, J., McCormick, February, 1922. Action in claim and delivery by Louise Parks against The Farmers Bank of McCormick. Judgment for plaintiff and defendant appeals. cites: Must be demand for possession before claim and delivery will lie: 27 S. C., 240; 45 S. C., 388; 95 S. C., 33. Waiver of claim of title will estop party setting it tip thereafter: 3 Strob.

Before Mauldin, J., Sumter, Pall Term, 1921. J. C. Wallace indicted for assault with intent to ravish and, upon conviction, appeals. cite: Statements by other parties not connected with defendant irrelevant and inadmissible: 22 C. J., 741; 108 S. C., 195; 97 S. C„ 136; 73 S. C., 48; 72 S. C., 355; 61 S. C., 292; 59 S. C., 561; 24 S. E., 297; 10 R. C. L., 937.

<p>Before Mauldin, J., Richland, December, 1922.</p> <p>Ira Harrison was convicted of murder and after the dismissal of his former appeal ( S. C.), he was resentenced. From such order of resentence he appeals.</p>

Before Mrndfl L. Smith, Special Judge, Sumter. Action by Hanna R. Kristianson, doing business as Krystal Optical Co. against The ■ American Railway Express Co. From directed verdict for plaintiff the defendant appeals. cite: Being an interstate shipment the rights and liabilities of parties must be determined by “the acts of Congress, the bill of lading and common law principles accepted and enforced by the Federal Courts”: 240 U. S., 612; 241 U. S., 87, 91, 92; 241 U. S.,…

<p>Before DeVorE, J., Aiken, 1922.</p> <p>Action by J. J. Feagin against Royal Insurance Co. From a directed verdict for defendant the plaintiff appeals.</p> <p>cites: Agent who inspects property for insurance is presumed to be acting for the company: 57 S. C., 358; 70 S. C., 300; 1 Civ. Code 1912, Sec. 2711-12; 2 C. J., 925, Sec. 663. Proof of agency: 48 S. C., 434.</p> <p>cite: Agent cannot waive as to future acts of insured: 81 S. C., 158; 33 S. E., 430; 82 Fed., 406; 14 R. C. L., 1170. Duration of agency for particular purpose: 21 R. C. E., 822; 124 A. E. R., 1077; 14 R. C. E., 159; 60 A. S. R., 210; Ann. Cas., 1913-A, 847.</p>

Before Wirson, J., Clarendon, August, 1922. Action by C. M. Davis Son & Co. against S. C. and Mamie E. Strikes. From order dismissing an appeal from a Magistrate the plaintiff appeals. cites: Remedies were distinct and independent and judgment on one was not adjudication -of the other.: 72 S. C., 34; 98 S. C., 190. cite: Res Adjudicata: 17 S. C., 40; 55 S. C., 507; 23 Cyc., 1215; 15 R. C. L., Par. 450.