Chapman v. Lipscomb , 18 S.C. 222 ( 1882 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

This case was heard below upon a report of the master, with the testimony upon which the report was founded. The action was an ordinary action for the recovery of personal .property, or' for the sum of $1,000, the alleged value thereof, in case a delivery could not be had, and for damages.

The property consisted of 179,000 bricks, more or less, alleged by the plaintiff to have been in his possession and wrongfully taken by the defendant. The defendant relied mainly upon a contract between himself and certain parties who had made the bricks, to wit, J. A. & J. P. Bondurant, under which the bricks had been made, alleging that these parties had failed to carry out this contract, and that by their consent he had taken possession of the bricks as of right under said agreement, and that no sale or assignment of said bricks, by these parties to the plaintiff, could bind him, except so far as there might be a surplus after a full accounting between the said J. A. & J. P. Bondurant and himself; and he demanded an accounting. There was no averment of fraud in the answer as to the sale. The contract referred to will be found in the report of the case. [Here follows a statement of the master’s report, the Circuit decree and the exceptions.]

This appeal was taken before the recent rule of this court, on the subject of exceptions presented in the- general form of the first exception, to wit, simply by reference to exceptions taken elsewhere than to the decree or judgment itself. It is our duty, therefore, to look back to the master’s report, and to take up the exceptions thereto and consider them seriatim. The first was disposed of by a subsequent order of the Circuit judge requiring a report of the testimony to be made, which was done, and the report filed. If that report was not satisfactory, there should have been a motion to recommit. This fact shows the confusion which may result from exceptions taken in this general and informal way, and vindicates the rule recently adopted, which rule the court hopes will not escape the notice of the profession in their preparation of appeals in the future.

The second exception is met by the cases of Bollman v. Bollman, 6 S. C. 44, and State, ex rel. Cathcart, v. Columbia, 12 S. C. 393. In the first case, it was said on this subject: “ It may be enough to say that the language of the code is to be considered as directory and not mandatory.” Again, “ In addition to what has been said, if the separation was necessary to a better understanding of her rights, her course was not to except because of the omission, but to move for a recommittal of the report, that it might be re-produced in the desired form.” In the second case, the principle was announced as follows: “ The first exception has been previously disposed of by this court, holding that the neglect of the referee or Circuit judge to present distinct findings of fact and conclusions of law is not error.” The court say further: “ It is to be regretted that so little regard is paid to this salutary requirement; but the remedy is not by appeal to this court on the ground of error of judgment; what might be the effect of a motion refused to correct such irregularity as a foundation of an appeal, we are not called upon to say, as that is not the present ease.”

The third exception questions “ statements in pages 2 and 3 bf copy furnished.” We have no means of ascertaining the precise questions raised by this exception, and, therefore, pass it over.

The remaining exceptions question certain findings of the master, and which were adopted by the Circuit judge. These findings consist both of fact and of law. The findings of fact being, first, that a bona fide sale for value had been made of the bricks by the Bondurants to the plaintiff; second, that there was no fraud and collusion between Bondurants and the plaintiff; third, as to the value of the bricks, and, fourth, as to the damages found. The findings of law were, first, that the terms of the contract constituted no partnership between the Bondurants and the defendant; second, that the Bondurants had full power and authority to sell one-half of the brick kiln mentioned, without the knowledge or consent of the defendant; third, that defendant’s remedy is against the Bondurants only.

As to the findings of fact, these cannot be reviewed by this court, however erroneous they might be. This court, as we have often had occasion to say, is for the correction of errors of law in cases at law, with appellate power only in cases of Chancery. In a law case, the facts are beyond our reach. The constitution gives them to the jury exclusively, except that the errors of the jury in this respect may be reviewed and overruled by the Circuit judge on motion for a new trial, and may, in an extreme case, reach this court on appeal from the action of the Circuit judge on such motion, where it involves an error of law. It is only in Chancery cases that we can review the facts, which must be brought here in such cases either by a “ Case ” made up for that purpose, or on a case with exceptions, which latter brings up both errors of fact and of law.

Now, to apply these principles, the question arises, is this a law case, or a case in Chancery ? ' Whether it is the one or the other does not depend upon the form or mode of trial which the parties may have adopted. A law case, it is true, is usually tried by a jury, but the right to a jury may be waived, and the facts submitted to a master or referee, or to the court if the parties so consent, but the case is nevertheless a law case, and must be governed by the principles applicable to cases at law. A ease in Chancery is not different, under the code, from cases of that character before the code. The code has made no change as to causes of action, or as to the marked distinction which formerly existed between equity and law. These still exist, and the code leaving these untouched has dealt simply with the forms of action, having abolished all previous forms and prescribed one and the same for all classes of injuries or causes of action.

The cause of action in the present case was the withholding by the defendant of the personal property of the plaintiff, and the plaintiff desired to recover his property with damages for its detention. His form of action before the code would have been trover, which is an action at law. His action is still of the same kind and on the law side of the court involving no principles of equity whatever. Such being the character of the case, the facts involved, whether found by a master, referee or the court, are beyond the jurisdiction of this court, and, in considering the legal questions involved, these facts must be taken as they have been found below.

It may be said, however, that the answer set up an equitable defense, and converted the case into a case in Chancery. A defendant cannot change the character of the plaintiff’s'action by simply interposing an equitable defense. If this could be done, it would give power to the defendant to deprive the plaintiff of the right of trial by jury at his pleasure, which would be placing that important constitutional right upon a very uncertain tenure. The former practice in such cases was for the defendant to go into the Court of Equity and enjoin the action at law, until the equitable defense could be heard. Now, the Court of Equity having been abolished, and the jurisdiction of that court having been conferred upon the Court of Common Pleas, equitable defences, it is true, may be set up in that court, and be heard there with the legal action to which it is interposed as a defense, but the action and the defense are not consolidated into one and. tried necessarily by the same tribunal; on the contrary, they still preserve their original and distinctive features, the one being still entitled to be tried by a jury and the other by the court under the forms of an equity proceeding.

In Adickes v. Lowry, 12 S. C. 108, the court, in discussing the nature of equitable defenses interposed in an action at law, said: “ Such defense is equitable in its nature, and belongs to that side of the court which exercises the Chancery jurisdiction. Under the former practice, such defense could not have been set up in the action at law to try the title and recover possession. The defendant would have been obliged to file his bill ih equity to restrain proceedings at law, and to seek such other relief as in equity he might have a right to demand. Under the Code of Procedure, all this may be affected by the pleadings in a single action, and new parties, if necessary, brought in; but at the trial, the legal and equitable issues must be distinguished and decided by the court in the exercise of its distinct functions as a court of law and a court of equity, and only those should be determined by a jury which are properly triable by a jury, while those which would formerly have been properly triable in equity must be determined by the judge in the exercise of his Chancery power.”

The case before the court was referred to the master by consent, “to take the testimony, and determine all issues, both of fact and law, and to report his actings and doings to the court.” The master was thus charged with the whole case, complaint and defense, law and equity; and discharging his duty under this consent order, he was invested with the functions, both of the jury and a chancellor — of a jury as to the facts upon which the plaintiff rested his case, and of a chancellor as to equities of the defense. The facts on the law side were those to which the defendant has excepted. As to these, as we have already said above, they are not before us.

We come, then, to the questions of law. The first and most important arises upon the construction of the contract. Lid that constitute the defendant a partner with the Bondurants? We think not. The true test of a copartnership is that there must be a communion of profits and losses. Story, in section 19 of his work on Partnership, says: “ It is often laid down in elementary works, as well as in common authorities, that to constitute a partnership there must be a communion of profits and losses between the partners; and this, in a qualified sense, is perfectly true, when it is understood with proper limitations belonging to the statement.” And in section 21: “ That each partner must, at all events, share in the losses, so far, at least, as they constitute a charge upon, and diminution or deduction from, the profits, and in this sense it is regularly true.”

We see nothing in the contract which could subject the defexxdant to any losses which might overtake the business. Nor was he to have a certain portion of the products as profits. The benefit which he expected to derive was not dependant upon the successful operation of the business by the Bonduraxits, nor was it to await the payxnent of the expenses to be incuri'ed. On the contrary, he was to have delivered to him by the Bondurants a fixed proportion of all the brick made on the yard, to wit, one-half — not one-half after the payment of debts and expenses incurred, but one-half of all made, the Bondurants agreeing also to sell to him 1,000,000 in the year 1879, at a certain rate. These stipulations were based upon the consideration that the defendant was to furnish a certain number of convicts as laborers in the yard. They are inconsistent with the idea of a copartnership, and we can see no error in the ruling of the court upon that subject.

Such being our conclusion upon the question of the partnership, it follows necessarily (the court below having found as matter of fact, that a bona fide sale had been made of the bricks in question by the Bondurants to the plaintiffs, and the sale free from fraud and collusion), that plaintiff’s right to the property had been established, and he was entitled to a recovery. And the defendant’s cause of action being for the breach of the contract on the part of the Bondurants, his remedy was against them only. The moment the court below construed the contract as constituting no partnei’ship, the equitable feature in the defense vanished, and nothing was left but a plain and ordinary action at law for the recovery of personal property which depended solely upon the facts as developed in the testimony.

Some question is made in the argument of appellant as to incompetent testimoxxy, but we find no exception among the thirteexx taken to the report of the master, referring to this matter. Nor do we see that the judge made any ruling on this subject, or that any exception to the decree raises such a question.

As to the damages, we see nothing erroneous in the ruling of the Circuit judge on that subject. The complaint- was for the recovery of the property and damages for its detention. What amount of damages the plaintiff sustained was a question of fact -exclusively for the jury, or other tribunal ácting as a jury, subject to be corrected, if erroneous, by other proceeding than by appeal.

It is the judgment of this court that the judgment of the -Circuit Court be affirmed.