Opinion
14041
April 11, 1935.
Before GREENE, J., Charleston, November, 1934. Affirmed.
Action by Andrew P. Whitman against the National Manufacture Stores Corporation, a corporation organized and existing under the laws of the State of Delaware. From an order of discovery, defendant appeals.
The order of Judge Greene directed to be reported follows:
This matter comes before me upon a motion for discovery under the provisions of Rules 43, 44, 45 and 46 of the Circuit Court. The cause of action has been commenced and is pending upon a summons (complaint not served), and the plaintiff shows that discovery is necessary to enable him to intelligently draw his complaint.
It has been made to appear to the Court that a contract was entered into between the parties to this cause with regard to the operation of a store at Spartanburg, S.C. under which contract the remuneration of the plaintiff as manager of the said store was made to depend upon the operating results attained by the store over a period of twelve months, and that the record of those operating results was kept by the defendant. It further appears that the defendant now refuses to reveal the figures established by the result of the operation of the store and that information as to the said operating results is necessary to enable the plaintiff to calculate the amount earned by him under the contract of remuneration, which said information is necessary to enable the plaintiff to intelligently draw his complaint.
It appears to the Court that when a contract of this kind is made and one of the parties relies upon the other to keep the records upon which payments under the contract are to be calculated, the opposite party is entitled to information as to those records under the provisions of the said rules of Court.
Now, then, upon motion of Buist Buist, attorneys for the plaintiff:
It is ordered that the plaintiff have a discovery from the defendant as follows:
1. The defendant shall deliver to the plaintiff, or to his attorneys, sworn copies of "monthly reports" in the form of that attached to the affidavit supporting the motion for discovery, which sworn monthly reports shall cover each and every calendar month commencing with June, 1933, and ending with May, 1934.
2. The defendant shall also deliver to the plaintiff, or to his attorneys, a sworn statement based upon the operation of the Spartanburg store for the fiscal year commencing June 1, 1933, and ending May 31, 1934, consisting of a calculation made as follows:
(a) The sum of $300.00.
(b) Plus 10 per cent. of the increased gross profit percentage of the sales.
(c) Plus 10 per cent. of the increased carrying charges percentage of sales.
(d) Plus 10 per cent. of the decreased controllable expense percentage of sales.
(e) Plus 5 per cent. of the gross profit on increased sales over quota as set up above.
The said calculation to show in detail the method by which it shall have been made, with a memorandum attached thereto identifying the books of account, and books of record, of the defendant company from which the figures used in the calculation shall have been taken.
3. Duplicates of the sworn statements delivered to the plaintiff, or to his attorneys, as required by Paragraphs 1 and 2, supra, shall be filed with the Clerk of this Court.
4. The said sworn statements shall be delivered to the plaintiff, or to his attorneys, and filed with the Clerk of this Court within twenty days from the date of this order, and the duplicates so deposited with the Clerk shall continue in the Clerk's possession during the pendency of this cause.
5. In event that the sworn statements herein required to be made shall fail to reveal to the plaintiff sufficient information to enable him to intelligently draw his complaint, then the plaintiff shall have leave to apply to this Court for an order requiring the deposit with the Clerk of this Court of the original books of account and records of the defendant company to such extent as might be necessary to enable the information to be complied, or to apply for such other relief as might appear to the plaintiff to be necessary or appropriate.
6. This order shall not operate as a stay of the time within which the defendant shall be required to appear in response to the summons, but it shall stay the time within which the plaintiff shall be required to serve his complaint for the period of 30 days after the sworn statements herein required shall have been delivered to the plaintiff, or to his attorneys, and filed with the Clerk of this Court.
Messrs. Mitchell Horlbeck, for appellant, cite: Pleadings: 70 S.C. 102; 13 S.C. 349; 48 S.C. 165; 151 S.C. 540; 18 C.J., 1121; 173 S.C. 320; 175 S.E., 534. Contracts: 40 S.C. 393; 108 S.C. 234; 173 S.E., 1; 169 S.C. 373; 146 S.C. 85; 169 S.C. 380; 169 S.E., 78; 177 S.E., 98. As to discovery: 24 S.C. 558; 40 S.C. 393; 48 S.C. 80; 40 S.C. 400; 107 S.E., 109; 153 S.C. 56; 150 S.E., 347.
Messrs. Buist Buist, for respondent, cite: Examination of witness before trial: 132 S.E., 335; 128 S.E., 358; 24 S.C. 558; 40 S.C. 393; 48 S.C. 8; 26 S.E., 1; 107 S.C. 109; 122 S.C. 86; 114 S.E., 700; 140 S.C. 107; 153 S.C. 56.
April 11, 1935.
The opinion of the Court was delivered by
As a statement of this case the Court adopts, in the main, the agreed statement of the parties litigant, as set forth in the transcript of record.
This action was commenced on the 17th day of November, 1934, by the service of a summons, complaint not served. No complaint has ever been served. The time for service of a complaint was stayed by order of his Honor, Judge Greene, as hereinafter set out.
On the same day with the summons plaintiff served on defendant a notice of motion for the discovery of books and records accompanied by an affidavit assigning as a ground that records in the possession of defendant are necessary to enable plaintiff intelligently to prepare his complaint.
On the 20th of November, 1934, defendant, through its attorneys, served on plaintiff's attorneys a notice of special appearance without submitting to the jurisdiction and reserving all rights, demanding a copy of the complaint.
On November 23, 1934, the motion was brought on for hearing before the Honorable G.B. Greene, presiding Judge, at which defendant, subject to the reservations contained in the notice of its special appearance, filed its return with affidavits and accompanying exhibits, contesting the plaintiff's application for discovery on the grounds therein set forth.
After hearing argument on both sides, Judge Greene on the same day filed an order ordering the defendant to discover and produce books and records as set forth in said order.
Within ten days thereafter, namely, on November 30, 1934, defendant, still subject to the reservations contained in its notice of special appearance, served notice of appeal upon plaintiff's attorneys, and served also at the same time a notice, still reserving the terms of its notice of special appearance, of motion before the Honorable C.T. Graydon, presiding Judge, to fix the amount of undertaking for a stay of the order pending appeal to this Court, as required by Code 1932, § 786.
On December 4, 1934, Judge Graydon filed an order fixing the amount for the appeal undertaking at $1,000.00.
On December 8, 1934, defendant, still reserving the terms of its special appearance as noted, filed undertaking with surety in the sum of $1,000.00, conditioned, as required by Section 786, to obey the order of the Supreme Court upon this appeal. Within thirty days thereafter, to wit, on the 28th day of December, 1934, this case and the exceptions were served upon plaintiff's attorneys.
We are satisfied with the conclusion reached by the Circuit Judge and for the reasons stated in the order issued by his Honor the exceptions, which we have duly considered in connection with the entire record, are overruled, and the said order is hereby affirmed.
MR. CHIEF JUSTICE STABLER, MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE WM. H. GRIMBALL concur.