¶1
The opinion of the Court was delivered by
Mr. Justice Bonham.
¶2
This is an appeal from the order of Judge Foster of Spartanburg County Court, which sustains a demurrer by plaintiffs to the counterclaim interposed by the defendant. The
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order of Judge Foster plainly" and concisely sets forth the history of the litigation, and correctly disposes of the issues before him.
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All exceptions are overruled, and the order appealed from is affirmed.
Mr. Chief Justice BlEase and Messrs. Justices Stabler and Carter concur.
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Case posture Posture Before FOSTER, J., County Court, Spartanburg, November, 1931. Affirmed.Action by T.M. Lyles and another against J. Duren Collins. From an order sustaining plaintiff's demurrer to counterclaim J. Duren Collins appeals.
The order of Judge M.C. Foster follows:
The plaintiffs instituted the above action against the defendants to recover the sum of $2,500.00 from the defendants, alleged to be the balance due for the performance of services rendered by plaintiffs to defendants under a contract signed by the plaintiffs and the two defendants. The answer of the defendant J. Duren Collins admits the execution of the contract as shown by a copy thereof attached to the original complaint, but denies the performance thereof by the plaintiffs according to its terms and sets up a counter-claim against the plaintiffs in the sum of $5,000.00.
The plaintiffs demurred to the counterclaim upon several grounds, one of which is that the amount demanded in the counterclaim is beyond the jurisdiction of the Court. Upon the hearing of the demurrer, the defendant J. Duren Collins asked permission to amend his counterclaim by alleging damages in the sum of $3,000.00 so as to bring his counterclaim within the jurisdiction of the County Court. This was permitted so that there is now before the Court a demurrer to the counterclaim alleging damages in the sum of $3,000.00. This leaves for the consideration of the Court two grounds of demurrer urged by the plaintiff. These are as follows:
(1) That the counterclaim fails to state facts sufficient to constitute a counterclaim against the plaintiffs for the reason that the action as shown by the complaint is based upon a joint contract made by the defendants, and the counterclaim of J.D. Collins attempts to set up an alleged individual claim in his favor which in no wise affects his co-defendant, Mrs. Davenport, and in which she has no interest.
(2) That the counterclaim fails to state facts sufficient to constitute a counterclaim in that no facts are alleged upon which a claim for damages may be predicated, the sum of the allegations being that the plaintiff under the contract brought an action for the construction of the will on account of its obscurity, etc., and prevailed before the Court in that contention, resulting in the setting aside of the will, and therefore any damages resulting to the defendant J.D. Collins arose from the considered judicial action of the Courts and not from any action of the plaintiffs for which they would be responsible in damages to the said defendant.
In order to reach a correct conclusion as to the merit of the first ground of demurrer to the counterclaim, it will be necessary to determine whether the contract attached to the complaint and admitted by the answer and counterclaim to have been executed by the defendant J. Duren Collins is a joint contract of the defendants, and, if it is a joint contract, whether one of the defendants can set up a counterclaim in favor of himself individually against the plaintiffs. From a reading of the contract, admitted to have been executed by the defendants, it seems to me that the contract is a joint one. Under the allegations of the complaint, the defendants being sued jointly under the authority of Goodale v. Page , 92 S.C. 413 , 75 S.E., 700 , neither of them can set up a counterclaim in favor of himself individually against the plaintiffs. It therefore appears that the demurrer to the counterclaim should be sustained upon the first ground as set forth above, and it is so ordered. Consideration will now be had as to the second ground of the demurrer as to the counterclaim so that the whole matter may be settled by the Supreme Court upon appeal. If I could agree with the plaintiffs' construction of the counterclaim as set forth in his summation of the allegations of the defendant Collins' pleadings, that is, that the counterclaim alleged only such damages as resulted to the defendant Collins as arose from the considered judicial action of our Courts, and not
from any action of the plaintiffs, plaintiffs' demurrer would also be sustained as to the second ground thereof. However, I cannot agree with plaintiff's construction of the counterclaim for the reason that the counterclaim alleges that, instead of instituting an action for the construction of a certain will, according to the contract, plaintiffs in reality instituted an action which had for its purpose the destruction of the entire instrument and all rights and interest of the defendant Collins therein, thereby breaching their contract of employment to the damage of the defendant Collins. For this reason, the demurrer is overruled as to the second ground thereof. Let a copy of the contract attached to the complaint be made a part of this order.
In accordance with the above, it is ordered that the plaintiffs' demurrer to the counterclaim of the defendant Collins be sustained as to the first ground hereof and overruled as to the second ground. Source: CourtListener
