McKellar v. Stanton , 104 S.C. 248 ( 1916 )

April 23, 1916. The opinion of the Court was delivered by This is an appeal from an order of Judge Bowman refusing to declare the action to be one of law and to place it on Calendar 1 for trial by jury. But he retained the cause on Calendar 2, where it had been put by plaintiff's counsel, and referred the cause to a special referee to hear and determine the same and report the same to the Court.

The only question raised by exceptions is whether the cause as raised by the pleadings is an action at law or in equity. It appears from the allegation of the complaint that the defendants were the only stockholders, officers, and directors of the said corporation. This allegation is admitted by the defendants, and this establishes a fiduciary relation between them and the corporation, represented in this case by the trustee, and the pleadings establish this situation.

Under the allegations of the complaint, that the defendants were the whole corporation, officers, directors, and only stockholders, that they obtained credit, bought goods and merchandise, borrowed money, which they fail and refuse to pay, and, as such officers, directors, and only stockholders acting as such, wrongfully conspired together to cheat and defraud the creditors of the corporation, and misappropriated the assets, and converted them to their own use, and refuse to satisfactorily account for the same or give any information as to the disposal of the same, though requested to do so, states a cause of action in equity which clearly states their duty as fiduciaries to account therefor, under the case of Black v. Simpson, 94 S.C. 312,77 S.E. 1023, 46 L.R.A. (N.S.) 137; Cobb v.Garlington, 100 S.C. 51, 84 S.E. 302.

Under the allegations of the complaint there is ample allegation to require the defendants to account for actings and doings, under the cases of Kerr v. Camden SteamboatCo., Cheves' Eq. 189; Buist v. Melchers, 44 S.C. 63,21 S.E. 449.

The pleadings show a cause in equity, and not one of law where the defendants were entitled, as a matter of right, to a jury trial, and we see no error on the part of his Honor. Exceptions overruled.

Judgment affirmed.