Opinion
June 19, 1902.
Before WATTS, J., Richland, November, 1901. Reversed.
Action by Levi Metz against B.L. Abney, Jno. P. Thomas and J.S. Verner. From order of nonsuit, plaintiff appeals.
Mr. Wm. H. Lyles, for appellant, cites: Nonsuit should not have been granted on failure to prove demand and refusal, (a) because they were alleged and admitted: 16 S.C. 585; (b) defendants denied plaintiff's right to funds: 9 Ency., 209; and this dispensed with necessity of such proof: 4 Ency. P. P., 648. As to contract between attorney and client: Wise v. Hardin, 5 S.C. 9 L.R.A., 90; 3 Ency., 2 ed., 332-3-4, 337; Taylor v. Barker, 30 S.C.; Weeks on Attys., 542; 4 DeS., 713; 4 Rich. Eq., 165; 1 McC. Ch., 549. Defendants being trustees, burden of proof was on them: 2 Pom. Eq. Jur., sec. 958; 1 S.C. 184; 30 S.C. 447.
Messrs. P.H. Nelson, Melton Belser, Andrew Crawford, R.W. Shand and J.Q. Marshall, contra. Mr. Shand cites: If plaintiff desired to call defendants to account as trustees, he should have proceeded in equity: 1 Per. on Trusts, 17, 843; 3 McC., 509; 1 Bail., 230; 6 Rich., 259. Admissions must be taken with all qualifications: 9 S.C. 458; 15 S.C. 268. And all parts of letters introduced become evidence: 1 Hill, 389; 2 Strob., 416; 2 Rich., 524; 23 S.C. 603; 36 S.C. 384; 41 S.C. 376; 1 Jones Ev., secs. 295, 296; 1 Gran. Ev., sec. 201; 19 Conn., 7; 49 Ky., 387; 55 Am. Dec., 83; 4 H. M., 447. Pleadings admit no demand, and its proof is necessary: 59 S.C. 85. There is no waiver of demand, and nonsuit was hence properly granted: 1 Hill, 222; 23 S.C. 289; 26 S.C. 29 S.C. 96; 36 S.C. 400.
June 19, 1902. The opinion of the Court was delivered by
At the conclusion of plaintiff's testimony, offered at the trial of the above named action, before his Honor, Judge Watts, and a jury, a motion for nonsuit was made on the following grounds: "1. Because it had not been shown that these defendants were indebted to plaintiff or had received for him moneys which they should account to him for. 2. Because no demand by plaintiff on these defendants previous to action brought had been proven." The Circuit Judge passed an order granting the nonsuit. From this judgment on the order of nonsuit the plaintiff now appeals.
We think the Circuit Judge was in error. It is quite true, that a demand upon attorneys by their clients for moneys alleged to have been collected by them for such clients before suit, is recognized as a salutary rule. We think there was some testimony here which ought to have gone to the jury, even when this rule is upheld. Certainly the letters of the defendants, written before suit was begun, denied that they owed the plaintiff anything (in their answer they practically did likewise). These letters were introduced by the plaintiff. But apart from these matters, it occurs to us that under the agreement of November, 1894, the defendants, as to certain choses in action assigned to them by the plaintiff, became trustees for the plaintiff, which, in our judgment, relaxed the severity of the rule as to demand before suit. We have refrained from any comment upon the facts of this case for the very good reason, as it appears to us, that a new trial must be ordered, and we would be unwilling to express any opinion thereon lest it might affect the new trial.
It is the judgment of this Court, that the judgment of the Circuit Court be, and is hereby, reversed, and that the action be referred to the Circuit Court for a new trial.