13 S.E. 177 | N.C. | 1891
Lead Opinion
We think the Court below misapprehended the purpose of the several covenants upon which this action is brought and failed to interpret them correctly. They were independent covenants collateral to the agreement between the plaintiff, Bank, and the defendants, Bobbitt & ITines, and were intended to secure the former in the payment of any balance that might be ascertained to be due to it for advancements which it might make from time to time to the latter in carrying on their business under an agreement which was to terminate on the 31st of October, 1886, (unless discontinued before that time upon notice as stipulated) with interest thereafter on such balance at the rate of eight per cent, per annum.
The balance found to be due from the firm of Bobbitt & Hines to the plaintiff on the 31st day of October, 1886, as reported by the referee and affirmed by the Court, was $5,031.82, which, as appears from the credits, was subsequently reduced to $4,043.73, September 1st, 1887, and the plaintiff insists that the covenants were to secure this balance, with interest thereon at the rate of eight per cent, per annum till paid, and that they are entitled to judgment accordingly.
The defendants, on the contrary, insist that the plaintiff exacted and received usury from the firm of Bobbitt & ITines, and thereby forfeited the interest on this balance, and, in accordance with this contention, and upon motion of counsel for defendants, the Court adjudged “that the plaintiff recover from the defendants no interest on the balance due from the 31st of October, 1886, until the first of this term (April 21st, 1890).”
In this we think his Honor erred. Whether the balance ($4,043.73) found to be due was a correct balance, or whether it embraced any usurious interest or other item improperly charged, is not a question for our consideration, as that is the balance found to be due by the referee and affirmed by
It is too well settled to need citation of authority that, except as to questions of jurisdiction and the sufficiency of the complaint to constitute a cause of action, this Court will only consider questions presented b}r the appeal of the appellant, and even if it were agreed that exceptions taken and errors alleged by the appellee should be heard and passed upon with the appellant’s case on appeal, it could not be done without a departure from the settled practice of the Court. If both parties appeal, the appeal of one will not bring up the appeal of the other, and this rule cannot be waived by consent. Perry v. Adams, 96 N. C., 347, and cases cited. In the present case the defendants’ exceptions are not before us.
The covenants stipulate that the obligors shall secure the Bank of Oxford in the advances made to Bobbitt & Hines, including “all amounts drawn by them for any purpose whatever.” The fair and reasonable, in fact the only legal, interpretation that can be placed upon this is, that they shall secure the payment of all amounts ascertained to be legally due, and if any usurious advances, or advances upon any other illegal or improper consideration, were made, not only the defendants Bobbitt & Hines, but the sureties on the collateral covenants to secure the payment of any balance that might be ascertained, upon settlement, to be due the plaintiff, had a right to have anv illegal item or items stricken from the account wdiich would reduce,pro tanto, the balance; but that balance, wffien ascertained, would, under the agreement, bear interest from October 31, 1886, at eight per cent.
It is not pretended that the covenant contained any contract or stipulation for the payment of a greater rate of
The defendants rely upon the case of Burwell v. Burgwyn, 100 N. C., 389. In that case there was an usurious contract, as alleged and found, and the question was presented by the appeal. In the | resent case, we fail to see, in the covenants, any contract for the payment of usury; in fact, it is found there was none; they only stipulate for the payment of the balance ascertained to be due, with interest thereon at eight per cent, till paid.
The Judge below had the power to review the findings of fact, as well as the conclusions of law, of the referee and to overrule, change, alter or modify them as he might think just and proper; but the findings of fact, if upon sufficient and competent evidence, are conclusive upon this Court, which has no control over the facts, and can only review the question of law presented by the appeal.
The balance found to be due from Bobbitt & Hines to the plaintiff, after deducting payment made since October 31st, 1886, was $4,043.73. and this sum is accepted, without appeal, as the correct balance, and by the clear, explicit and unmis
This interest should be on $4,043.73 from September 1st, 1887j the balance having been reduced by credits subsequent to October 31st, 1886, to that amount on said day, and the judgment below will be m .de to conform to this opinion.
Dissenting Opinion
dissenting: The Court overruled all the exceptions of the defendants to the report of the referee. It, in effect, approved and adopted the latter’s finding of fact, particularly and affirmatively, that the plaintiff had exacted usury from Bobbitt & Hines. There was no objection to the findings of fact. Then, upon the pleadings and the report, including the findings of fact, it gave judgment for the plaintiff for the balance ascertained to be due to it from Bobbitt & Hines on the 31st day of October, 1886, less credits, but allowed no interest upon such balance, upon the ground that the plaintiff took usury from them from time to time on account of moneys advanced to them, and thereby forfeited its right to have interest on such balance agreed to be paid by the defendants. The plaintiff insists that the Court erred in refusing to allow such interest.
The facts were ascertained, and the Court seeing and considering the whole record should have given such judgment thereupon as the plaintiff was entitled to have, and it was erroneous to give any other. Then, did the Court give the proper judgment? I think not; that it misapprehended the purpose of the several covenants sued upon, and failed to interpret them correctly. They were not part or of the con
The liability of the defendants, the extent thereof, and particularly the measure thereof, must be determined by a ju»t interpretation of the several covenants sued upon. They each contain this explanatory obligatory provision: “The foregoing obligation is made to secure the Bank of Oxford, in part, for an amount not exceeding five thousand dollars, should it agree to advance to Bobbitt & Hines, copartners , in the .management of the Meadows Warehouse. The amount due at any time shall be evidenced by the account which the Bank of Oxford agrees to open with the said Bobbitt & Hines, and is to include and to secure all amounts drawn by them for any purpose whatsoever. * * * *
“ This agreement terminates on the 31st of October, 1886, and the obligors hereto shall be held bound for whatever
Now, this plainly implies that it was contemplated by the parties that the plaintiff would from time to time, within the period designated, advance to Bobbitt & Hines, partners, money not exceeding five thousand dollars, and if it should do so, then the defendants respectively would each be obliged to pay the plaintiff any balance of such advancements Bobbitt & Hines might owe it at the termination of that contract with it in that respect, not exceeding the sum each of the defendants covenanted to pay with interest at the rate stated. It was stipulated that the amount so due the plaintiff should be evidenced by the account it should open with Bobbitt & Hines, and that such account should “include and secure all amounts drawn by them for any purpose whatever.” But the words “ amounts drawn by them for any purpose whatever” do not imply for every possible purpose, or for any purpose legal or illegal; they imply, giving them their broadest meaning in favor of the plaintiff, amounts drawn in good faith for any legal purpose whatever; they do not imply amounts drawn for any illegal purpose within the knowledge of the plaintiff, and particularly any illegal purpose to be shared in or for the benefit of the plaintiff. It is not to be presumed or merely inferred that the parties to the covenants, whether covenantors or covenantees, contemplated or intended any such advancements of money or amounts to be drawn for illegal purposes or any illegal transactions, or that the plaintiff would knowingly make such advancements for illegal purposes. They contemplated and intended the utmost good faith on the part of the plaintiff towards the defendants, and the covenants of the latter are to be interpreted in that light. Hence the defendants did not covenant to pay to the plaintiff any usury charged against, exacted from or paid, or agreed to be paid by Bob
The defendants covenanted to pay the plaintiff any such balance in its favor for money advanced. It might be contended that this implied money actually advanced — paid directly to Bobbitt & Hines; but it must be observed that the account which the plaintiff agreed to open with them was intended to embrace “all amounts drawn by them for any purpose whatever.” This fairly implies and embraces any “ amount drawn ” to pay the plaintiff lawful interest for the advances of money to them. The reasonable and just implication is that the defendants expected that the plaintiff would charge and require to be paid lawful interest upon such advances, and that they obliged themselves to be responsible on that account. The defendants were therefore liable, oach. to the plaintiff for a sum of money not exceeding that specified in the covenant executed by them on account of any balance of such advancements made to Bobbitt & Hines, partners, which balance should be ascertained by adding interest upon advancements unpaid until the 31st day of October, 1886, at the rate of six per cent, per annum. The rate of eight per cent, per annum cannot be allowed, because there was no agreement in .writing for that rate. The balance ascertained to be due to the plaintiff on the day last mentioned (that was the day after which further advancements could not be made as contemplated by the covenant of defendants) bore interest until paid at the rate of eight per cent, per annum — the covenants so expressly provided. The Court, seeing the whole record and learning from the
It will be observed that no question as to usury paid by Bobbitt & Hines, partners, to the plaintiff properly arises in this case. The action is founded upon the covenants specified in the complaint, and, as said above, the liability of the defendants is determined by a proper interpretation of those covenants.
Per curiam. Error,
Lead Opinion
MERRIMON, C. J., dissenting. We think the court below misapprehended the purpose (534) of the several covenants upon which this action is brought and failed to interpret them correctly. They were independent covenants collateral to the agreement between the plaintiff bank and the defendants, Bobbitt Hines, and were intended to secure the former in the payment of any balance that might be ascertained to be due to it for advancements which it might make from time to time to the latter in carrying on their business under an agreement which was to terminate on 31 October, 1886, (unless discontinued before that time upon notice as stipulated) with interest thereafter on such balance at the rate of 8 per cent per annum.
The balance found to be due from the firm of Bobbit Hines to the plaintiff on 31 October, 1886, as reported by the referee and affirmed by the court, was $5,031.82, which, as appears from the credits, was subsequently reduced to $4,043.73, 1 September, 1887, and the plaintiff insists that the covenants were to secure this balance, with interest thereon at the rate of 8 per cent per annum till paid, and that it is entitled to judgment accordingly.
The defendants, on the contrary, insist that the plaintiff exacted and received usury from the firm of Bobbitt Hines, and thereby forfeited the interest on this balance, and, in accordance with this contention, and upon motion of counsel, for defendants, the court adjudged "that the plaintiff recover from the defendants no interest on the balance due from 31 October, 1886, until the first of this term (21 April, 1890)."
In this we think his Honor erred. Whether the balance ($4,043.73) found to be due was a correct balance, or whether it embraced any usurious interest or other item improperly charged, is not a question for our consideration, as that is the balance found to be due by the referee (535) and affirmed by the court below, from which there was no appeal by the defendants; and the sole question presented by the plaintiff's appeal is: Was the plaintiff entitled to interest at 8 per centum on this balance under the covenants executed by the defendants to secure the same? *375
It is too well settled to need citation of authority that, except as to questions of jurisdiction and the sufficiency of the complaint to constitute a cause of action, this Court will only consider questions presented by the appeal of the appellant, and even if it were agreed that exceptions taken and errors alleged by the appellee should be heard and passed upon with the appellant's case on appeal, it could not be done without a departure from the settled practice of the Court. If both parties appeal, the appeal of one will not bring up the appeal of the other, and this rule cannot be waived by consent. Perry v. Adams,
The covenants stipulate that the obligors shall secure the Bank of Oxford in the advances made to Bobbitt Hines, including "all amounts drawn by them for any purpose whatever." The fair and reasonable, in fact, the only legal interpretation that can be placed upon this is, that they shall secure the payment of all amounts ascertained to be legally due, and if any usurious advances, or advances upon any other illegal or improper consideration, were made, not only the defendants Bobbitt Hines, but the sureties on the collateral covenants to secure the payment of any balance that might be ascertained, upon settlement, to be due the plaintiff, had a right to have any illegal item or items stricken from the account which would reduce, pro tanto, the balance; but that balance, when ascertained, would, under the agreement, bear interest from 31 October, 1886, at 8 per cent.
It is not pretended that the covenant contained any contract (536) or stipulation for the payment of a greater rate of interest than is allowed by law. On the contrary, it is found that there was no such stipulation or agreement; but it is said that the bank charged Bobbitt Hines usurious interest on advancements made to them, and thereby forfeited all interest on the balance secured by the covenant. We are not called upon in the present case to say how it would be if the balance was increased by usurious interest; but even if it were so, and the referee and the court below erred in finding that there was a balance due of $4,043.73, the question is not presented in this appeal. If the court below failed or refused to strike any usurious or other illegal item from the account, whereby the balance due would be diminished, the defendants should have excepted and appealed, but they seem to have been satisfied with the judgment — at all events, failed to take and perfect an appeal therefrom, and we can only consider the error assigned by the appellant.
The defendants rely upon Burwell v. Burgwyn,
The judge below had the power to review the findings of fact, as well as the conclusions of law, of the referee and to overrule, change, alter or modify them as he might think just and proper; but the findings of fact, if upon sufficient and competent evidence, are conclusive upon this Court, which has no control over the facts, and can only review the question of law presented by the appeal.
The balance found to be due from Bobbitt Hines to the plaintiff, after deducting payment made since 31 October, 1886, was $4,043.73, and this sum is accepted, without appeal, as the correct balance, (537) and by the clear, explicit and unmistakable language of the covenants, bears interest at the rate of 8 per centum per annum till paid, and, without passing upon the plaintiff's exceptions seriatim, or considering in detail the points presented by the learned counsel by whom they were forcibly and ably pressed upon our attention, we think the court below erred in construing the covenants, and denying to the plaintiff interest at 8 per cent on the balance ascertained to be due, as stipulated therein.
This interest should be on $4,043.73 from 1 September, 1887, the balance having been reduced by credits subsequent to 31 October, 1886, to that amount on said day, and the judgment below will be made to conform to this opinion.
