46 S.C. 426 | S.C. | 1896
Lead Opinion
The following opinion was delivered by
This was an action to foreclose a mortgage on real estate, given to secure the payment of the amount due on a note for the balance of the purchase money of the mortgaged premises. The defendants in their answer admitted the allegations in the complaint as to the execution of the note and mortgage, and that no part thereof had been paid; but they set up in their answer a counter-claim for damages, alleged to have been sustained by them by reason of certain misrepresentations alleged to have been made by the agents of the plaintiff, as to the condition of the said property. It seems that the plaintiff, having removed from the land in question, situated near the city of Greenville S. C., where he had formerly resided, to the State of Florida, placed this property in the
The master, to whom it was referred to take and report the testimony, together with his findings of fact and conclusions of law, made his report, in which he disallowed the counter-claim set up by defendants, and found that the plaintiff was entitled to judgment of foreclosure for the amount which he found to be due on the note on the 1st of July, 1895. To this report the defendants excepted, and the case was heard by his Honor, Judge Aldrich, upon the report and exceptions, who rendered judgment overruling the report of the master, allowing defendants’ counter-claim to the amount of $1,227, from which he deducted the face of the note, $1,000, and rendered judgment in favor of the defendants against the plaintiff for the excess, to wit: for $227. From this judgment plaintiff appeals, upon the several grounds set out in the record. For a full understanding of the facts of the case and the questions involved, it will be necessary for the Reporter to embrace in his report of the case the correspondence between the parties above referred to, both by mail and telegraph, the report of the master, the decree of the Circuit Judge, and the exceptions for the purposes of this appeal, as the foregoing statement is intended merely as a brief outline of the general history of the controversy between these parties.
The Circuit Judge seems to have rested, his conclusions upon the following propositions: That the advertisement was intended as a representation of the condition- of the property; that such representation was false; that defendants acted upon such false representations; that such false representations were confirmed by the report of the said Smith, who, by his agreement to divide commissions with Chapin, the agent originally deputed by plaintiff to sell the property, became the agent of plaintiff, who thereby became responsible for such false representations.
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.
Concurrence Opinion
concurs in result in following opinion: I concur in so much of the judgment announced by Mr. Chief Justice Mclver in the foregoing opinion as reverses the judgment of the Circuit Court on the question of damages, and remands the case to the Circuit Court for further proceedings, because there was error on the part of the Circuit Judge in the mode by which he assessed the damages. The damages should be assessed by ascertaining what would have been the value of the property if it had been in the condition in which it was represented to be, then deducting from such valuation the value of the property in the condition in which it actually was at the time of sale. The case, in my opinion, should be remanded to
Concurrence Opinion
concurring with
I do not feel that the respective agents of the plaintiff and defendants intended to injure the defendants, and yet such was the effect of their conduct in the premises. I concur, therefore, with Mr. Justice Gary, that the judgment of the Circuit Court should be reversed only so far as the method adopted by the Circuit Judge in ascertaining the damages of the defendants is concerned. I think Mr. Justice Gary lays down the correct rule for the ascertainment of such damages, and that the action should be remitted to the Circuit Court for the purpose of enforcing such rule.