The respondent has petitioned for a rehearing. The grounds of the petition appear to us merely to reiterate in different language the contentions of respondent's counsel that were ably presented in their brief and oral argument in the argument of the case in the first instance. But in view of the importance of the main issue to the respondent, and of the feeling of respondent's counsel that the language in which a portion of the opinion of the Court is framed has a tendency to reflect upon their judgment in prosecuting this case, we will comment briefly on our reasons (in addition to the fact that no new matter is presented) why we refuse the petition.
The portion of the opinion of the Court in which it is pointed out that the considerations which we found controlling in this case arose out of the contractual nature of the action, and might not have been controlling if a suit in equity had been brought on the theory of the rejection and repudiation of the contract by the appellants, or against the partners as individuals for damages for wrongful ouster, had reference as stated in the opinion to the Court's purpose "to show by contrast the difference between a suit under the contract for rights of the respondent as defined therein, and a suit which is not founded on the contract * * * *." It was expressly stated that the Court intimated no opinion as to whether suits of the character described would have been or are open to the respondent. We merely sought to emphasize our conclusion that in a suit on a contract, for the sums of money therein contracted to be paid, full effect must be given to the language of the contract; and we found that the language of the present contract covered the facts adduced, leaving us with no alternative but to apply the contract to the facts. *Page 211
When respondent's counsel argue that the partners could not become liable in damages to the respondent in their individual capacities because "they acted in pursuance of lawful contract rights," they are giving expression to the view that in this case the question at issue is covered by the contract. That conclusion, with a statement of our interpretation of the contract, is the foundation of our opinion.
In no event may the comments in the opinion of this Court reasonably be regarded as a reflection on the judgment of respondent's counsel in pursuing the course they did in the present case, rather than instituting some other kind of action. Whatever other or additional course might have been or may be open to them (as to which we make no intimations), the results which flowed from their able presentation of the present case leave no foundation for any possible criticism of the course pursued by them. They sued for three items claimed under the partnership agreement, to wit, the salary item; respondent's portion of the partnership investment account, and the respondent's stipulated share of the partnership assets. On the first two items they recovered the full amounts claimed. On the third they recovered the full amount which under our construction of the contract was payable.
We might add that in our opinion the case of Moore v.Postal Telegraph-Cable Co., 202 S.C. 225,24 S.E.2d 361, cited by respondent's counsel in support of their position that we may have misapprehended the provisions of the contract relating to the termination of the interest of a partner, is an interesting application of the precise rule upon which the opinion of the Court in the present case is based. The cited case holds that where the contractual language fits the facts of the instant case, it must be applied and that in such a case the power reserved to a contracting party to determine a factual issue cannot be exercised to render the contractual language inapplicable. *Page 212
The argument that we overlooked the admission of the appellants themselves that the respondent was entitled to recover upon a showing that the action of the appellants was arbitrary or capricious overlooks the basic principle of the ruling of the Court, to wit: It is wholly immaterial whether the action of the appellants was a reasonable exercise of their discretion, or whether it was arbitrary or capricious, because (1) the respondent was in fact ousted from the partnership; (2) because of the ouster he sued on the contract for the moneys which he deemed payable to him under the contract and under the supplementary oral interpretations thereof upon which he relied; and (3) we found in the contract express language which in our opinion precisely encompassed the facts of the present case.
The seventh ground of respondent's motion is to the effect that a contract need not deal with the damages which shall flow from a breach thereof and that we overlooked the rule that it is only when parties expressly contract for liquidated damages that the contract is binding as to the amount of recovery for a breach. But in this case the contract does provide the amounts that shall be payable in the contingency with which we are dealing. This was not a suit for damages for breach of contract; it was a suit for specific sums of money contracted to be paid. And the provisions for the payment of these sums excluded the theory of damages independently of the provisions of the contract. For all practical purposes they amounted to stipulations for the payment of liquidated damages in a specified amount upon the happening of the contingency covered by the contract and involved in the present case.
It is fallacious to contend, as is done in the petition for rehearing, that the respondent was entitled to recover damages as for a breach of the contract. Whatever interpretation may be placed upon the contract the suit was for the sums therein stipulated to be paid. *Page 213
Petition refused.
MR. CHIEF JUSTICE BAKER and MESSRS. ASSOCIATE JUSTICES FISHBURNE, STUKES, TAYLOR and OXNER concur.