Columbia Phosphate Co. v. Farmers' Alliance Store

47 S.C. 358 | S.C. | 1896

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The plaintiffs brought this action to recover the amounts mentioned in two notes, bearing date the 2d March, 1894, the one payable on the 1st of November, 1894, and the other on the 1st of December, 1894, alleged to have been executed by the defendant corporation to the plaintiff company, and endorsed by the individuals, named as defendants, with said corporation. It appears that these individuals, on the 26th of November, 1894, took from the defendant corporation a mortgage on the stock of goods then in the store houses of said corporation in the towns of Johnston and Mt. Willing, as well as all other goods which such corporation might thereafter acquire and put in said store houses, for the purpose of se- • curing and indemnifying those individuals against any loss or damage by reason of their having endorsed the notes of said corporation. It also appears that the defendant corporation, subsequently to wit: on the 26th of November, 1894, made an assignment of all its property to one Thomas R. Pearce, for the benefit of its creditors, providing that the said assignee should sell for cash all the stock of goods and chattels, and collect all choses in action, and out of the proceeds thereof should first pay the expenses of the assignment, and next, pay all of the creditors of the corporation, according to their legal priorities; and if there should be any balance left after paying all such creditors, such balance should be. turned over to said corporation. This deed of assignment (a copy of which is set out in the “Case”) does not, however, contain any provision that such creditors, as may accept the terms of the assignment, shall release the defendant corporation from any balance remaining unpaid out of the proceeds of the assignment. After the commencement of this action, the mortgage above referred to was assigned to the plaintiff company, the precise date not being given in the “Case,” except that it was some time in the year 1895. Certain payments were admitted to have been made since the commencement of this action, which were allowed by plaintiff to be credited on the amount sued for to the amount of $523.54 — the remainder of such payments having been credited on another demand held by plaintiff against defendant corporation not embraced in the present action.

The Circuit Judge having charged the jury, a verdict was rendered in the following form: “We find for the plaintiff the sum of $4,767.36;” and on the next day the defendants moved to set aside the verdict of the jury and for a new trial, “Because the verdict did not except the defendant, W. T. Walton, from the finding,” and this motion being overruled, judgment was duly entered on the verdict, from which judgment defendants appeal upon the eleven grounds set out in the record. These grounds of appeal, together with the charge of the Circuit Judge, will be incorporated in the report of this case.

1 The first and eleventh grounds, having been very properly abandoned upon the argument here, require no further notice. The second ground, which imputes error to the Circuit Judge in not granting a new trial .because W. T. Walton was not excepted by name in the verdict, can be fully disposed of by a bare statement of what occurred at the trial. The “Case” shows that as soon as the complaint was read, one of the counsel for defendants said: “We have a demurrer here as to Walton,” to which one of the counsel for plaintiff replied: “We desire to discontinue as to Walton. We do not ask for judgment against Walton.” Thereupon an order was entered sustaining the demurrer as to Walton, and authorizing him to enter up judgment for his costs against the plaintiff. This was quite sufficient to discharge Walton from the case, to which he was no longer a party. Accordingly, the Circuit Judge, in his charge, expressly instructed the jury as follows: “You will consider this action dismissed as to the defendant, W. T. Walton. Your verdict cannot affect him one way or the other; and why? because he has demurred to the complaint, and that demurrer has been sustained, and he is practically out of this case.” In the face of this, what necessity could there be for naming Walton in the verdict, is more than we can see. It would have been worse than useless to grant a new trial as to Walton, for that is the utmost that could have been demanded, when judgment had already been ordered in his favor by the order sustaining the demurrer. The second exception must be overruled.

2 The third ground of appeal is itself open to exception, inasmuch as it misrepresents (unintentionally, no doubt,) the instructions really given to the jury by a partial quotation from such instructions. Surely there was no error of law on the part of the Circuit Judge in instructing the jury to credit the amount of an admitted payment; especially in view of the fact, as shown by the charge, that the Judge proceeded to saj? that the defendants claimed a larger credit, which should, or should not, be allowed, according to the view which the jury might take of the testimony. The third exception must be overruled.

3 The fourth exception is based upon a misconception of that portion of the charge therein referred to. We do not understand that there was any controversy as to the fact that the mortgage was transferred to the plaintiff. The only controversy was as to the effect of such transfer; the defendants contending that the mortgage was accepted in payment of the notes which constituted the basis of this action, while the plaintiff, on the other hand, contended that the mortgage was accepted merely as collateral security and not as payment; and it was in reference to this controversy, manifestly, that the Judge was speaking when he used the language excepted to. It is too well settled to admit of dispute now, that an attorney at law has no authority to accept anything but money in payment of a claim sent to him for collection, unless he has authority from his client so to do (Ludden & Bates Southern Music House v. Sumter, 45 S. C.) Hence, when any such claim is made, it is necessary to establish the authority of the attorney to accept something other than money in payment of a claim sent to him for collection. The Circuit Judge, no .doubt, had this well settled doctrine in mind when he made the remarks, which, it seems to us, have been misapprehended by appellants’ counsel. The fourth exception is overruled.

4 The fifth, sixth, ninth, and tenth exceptions, which were considered together by appellants’ counsel, will be so considered by us, except to say that, in addition to the other objections, we find no evidence in the “Case” showing that any such request to charge, as constitutes tlie basis of the sixth exception, was ever made by appellants. But, in addition to this, we find no evidence in the case upon which the point raised by these exceptions can be raised. They are based upon the erroneous assumption that the plaintiff, by its attorney, took possession of the mortgaged property, through the assignee, Pearce, and failed to dispose of the same as required by law. Now, as the undisputed facts are that the defendant corporation made an assignment of all its property to the said Pearce, before the mortgage was transferred to the plaintiff, and that Pearce took possession of the goods and proceeded to dispose of them as directed by the assignment, and that the mortgage debt was entitled to be first paid, after the expenses of the assignment, we see no occasion for the plaintiff, by its attorney or otherwise, to seize the goods under the mortgage, and there is no evidence that any such seizure was ever made. On the contrary, the evidence shows that the attorney for the plaintiff, when he acquired possession of the mortgage, finding the mortgaged property in the possession of the assignee under the deed of assignment, which, as we have said, provided that the proceeds should, after the expenses, be first applied to the mortgage debt, simply allowed the assignee to continue in possession, and to continue to dispose of the goods as directed by the assignment. While, therefore, the proposition of law, contended for by appellants, as to the duty of a mortgagee who takes possession of the mortgaged property, under the mortgage, may be sound, we are unable to perceive its application to this case. Besides, as we understand the Judge’s charge, the jury were instructed in accordance with the proposition contended for by appellants, but at the same time were properly instructed, that such proposition had no application to this case, unless the jury came to the conclusion that the mortgaged property had been seized by the mortgagee under the mortgage. It is manifest, therefore, that there is no foundation for any of these exceptions.

5 The seventh exception being pointed onfy to one of the reasons given by the Circuit Judge for the instructions given to the jury, and there being another reason quite sufficient to sustain the charge, it becomes immaterial to consider whether this particular reason is sound. The eighth exception may be disposed of by a similar remark.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.