42 S.C. 104 | S.C. | 1894
The opinion of the court was delivered by
The facts of this ease seem t.o be conceded, and the only controversy is as to the legal rights of the parties under the facts. On the 18th July, 1888, the defendant executed a mortgage on two town lots to one H. Baum, to secure the payment of two notes, aggregating the sum of one hundred and seventy-five dollars, which notes, together with the mortgage, were duly assigned to the plaintiffs herein.
At this time, both the plaintiffs and defendant were under the impression that more than $315 remained due on that mortgage; and between the 5th and the 9th of January, 1893, the plaintiffs made several demands upon the defendant for the balance, $41.62, claimed to be still due on the mortgage. On the night of the 8th of January, 1893, the defendant discovered from certain memoranda in his possession, which had previously been mislaid, that the proceeds of the sale of the mules had been more than sufficient to pay the real balance due on the mortgage, and on the next morning, the 9th, addressed to plaintiffs a note, informing them of the fact, and directing them to credit the surplus proceeds of the sale of the mules upon the mortgage of the town lots. To this note the plaintiffs replied as follows: “Will you please send us a statement
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry out the views herein announced.