43 S.C. 5 | S.C. | 1895
The opinion of the court was delivered by
On the 17th day of October, 1893, T. S. Joye and J. H. Sanders executed a deed of assignment to C. W. Hewitt for the benefit of their creditors. The assignment
“Charleston, S. C., November 24th, 1893. C. W. Hewitt, Esq., assignee Joye & Sanders, Darlington, S. C. Dear Sir: We hereby accept terms of assignment of estate Joye & Sanders, and agree to accept auy dividends accruing under same in full payment of our account. Bespectfully, George W. Steffens & Son.”
“To C. W. Hewitt, assignee of Joye & Sanders, and E. O. Woods, agent of the creditors. We agree to accept the terms of the assignment, in full settlement and release of our claims. Witness our hands and seals this November 15th, 1893. C. Schefflin & Co., [L. S.] Christian Schefftin, [L. S.] Peter Schultz, [L. S.]”
“We, the undersigned, accept the terms of the assignment made by Joye & Sanders for the benefit of their creditors, of date October 17th, 1893, and in consideration of the payment of our pro rata of their assets, hereby Our claims against them, or either of them. S. W. Travers & Co., per C. M. Ward, attorney in fact. Attest: Geo. W. Brown.”
His honor, judge Benet, decided upon Circuit that the foregoing instruments of writing were null and void as acceptances and releases under the deed of assignment. The presiding judge relied upon the cases of Jaffray v. Steedman, 35 S. C., 38; Burgiss v. Westmoreland, 38 Id., 427; and Armstrong v. Hurst, 39 Id., 498.
Mr. Justice McGowan, in delivering the opinion of the court in Burgiss v. Westmoreland, 38 S. C., 428, says: “Neither the assignment act nor the deed of assignment makes any mention of a seal, and we think it manifest that the only object of requiring the execution of a release was.to secure, under certain conditions, the absolute discharge of the debtor as to the portion of the debt not paid by the pro rata under the assignment, and as a consequence, that a paper which is sufficient for that purpose is a substantial compliance with the requirement, although not a technical release under seal. As the instruments executed in time, with or without seals, would discharge the debtor, it would seem very technical to hold that a creditor should be deprived of all benefit under the assignment, simply because his relinquishing paper is without a seal. ' ‘Although in general a creditor who separately agrees to take less than his entire demand, is not legally bound by such agreement for want of adequate consideration, yet where several creditors on the faith of other stipulations enter into an agreement of that nature, whether by deed or unstamped memorandum, each is legally bound by it, and he cannot either privately receive, or sue his debtorifor a larger dividend than the rest.’ Chit. Prom. Notes, 279.”
In the case of Armstrong v. Hurst, 39 S. C., 506, it appears that on the 26th of January, 1892, Messrs. Perry and Heyward, as attorneys for certain of the creditors therein named, filed with the assignee a notice, of which the following is a copy: “To J. C. Eogers, assignee, Greenville, S. C. Take notice that the creditors whose names appear upon the list hereto attached, with their respective claims against the firm of Dacus & Jordan, hereby accept the terms of the assignment made to you by the firm of Dacus & Jordan—N. C. Dacus and M. M. Jordan—on the 27th day of November, A. D. 1891, and offer releases of their said claims, respectively, as required by said
We think theconclusion at which the presiding j udge arrived, was, perhaps, due to the fact that he was not aware that in the case of Burgiss v. Westmoreland, upon which he principally relied, only three of the defendant creditors appeared, and the rights of D.orman & Cannon and Arnold & McCord were not before the Supreme Court for adjudication when that decision was rendered. This fact does not appear in the opinion of the Supreme Court, but does appear on page 11 of the “Case.”
The foregoing cases show: 1. That in accepting the terms of an assignment made for the benefit of creditors, and executing releases of claims, neither a seal nor any particular form of release is necessary. 2. That it is sufficient, if the writing-show's an intention to accept the terms of the assignment, and to release, in presentí, the debtor from all liability, except under the deed of assignment. 3. That a mere offer to release, being executory in its nature aud subject to withdrawal by the creditors, is not sufficient. 4. That a mere acceptance of the terms of an assignment without the execution of a release, is not sufficient.
The three acceptances and releases in this ease show: 1st. That it was the intention of the creditors executing them to accept the terms of the assignment. 2d. That it was the intention of the creditors executing them, to release the debtors from all future liability on their claims. 3d. That it was^the intention of such creditors, that the acceptances and releases should take effect, in presentí. Such being- the Gase, they are all valid under the assignment.
Objection has been urged against the validity of the accept-, anee and release executed by S. W. Travers & Co., per O. M.
It is the judgment of this court, that the judgment of the court below be reversed, and that the case be remanded to the Court of Common Pleas for Darlington County for such further proceedings as may be necessary to carry out the views herein announced.