36 S.C. 10 | S.C. | 1892
The opinion of the court was delivered by
The contention here relates to a mortgage executed by plaintiff to defendant on the 11th January, 1881, upon a tract of land lying in Chesterfield County, containing 241 acres, to secure the payment of $598.44, with interest from date at 10 per cent, per annum till paid, . The execution of the mortgage, the loan of the money, and the interest to be
The pleadings here substantially embody the foregoing statements. To the answer, however, is added that on the 9 February, 1888, the plaintiff executed a paper under his hand and seal, by which he is estopped from making the defence of partial payment of the debt under consideration. It should be stated here that the mortgage contained a power of attorney for defendant to sell the mortgaged premises in the event plaintiff made default in payment of his said bond after it matured, and that, in pursuance of this power, the defendant had advertised the sale of the lands on the 28th January, 1889, for the purpose of paying the entire debt, principal and interest, allowing no credits on the bond.
By consent of both parties, all the issues of law and fact were referred to W. J. Hanna, Esq., clerk of court for Chesterfield County. With his report the notes of testimony were submitted, and by such referee it was found that Col. Stephen Jackson was the defendant’s agent, and as such agent did receive the. sums of money heretofore recited; and that the plaintiff was entitled to have the' same duly credited upon his bond, except the sum of $50, claimed to have been paid in 1886 ; that $75 was a reasonable fee for the attorneys of defendant, but that plaintiff should not be required to pay the same. This report of the referee, under the pleadings and testimony, was heard by Judge Fraser on the
1. Because his honor erred in holding that proofs outside of bond and mortgage as to agency is incompetent, and also in holding that the agreement endorsed on the bond and mortgage was conclusive against the plaintiff.
2. Because his honor erred in holding that the declaration of Stephen Jackson, made at the time of the transaction as to the agency, was incompetent.
3. Because his honor erred in holding that the plaintiff was an incompetent witness to prove the agency by the declaration of Stephen Jackson.
4. Because his honor erred in holding that there was no proof of the agency of Stephen Jackson, and that the referee erred in holding that there was an agency.
5. Because his honor erred in holding that Stephen Jackson was not the agent of defendant in reference to this bond and mortgage.
6. Because his honor erred in giving judgment on the-entire amount due on bond and mortgage, and in holding there was no payment made on the same.
7. Because his honor erred in holding that payments made to Stephen Jackson were not payments made on the bond and mortgage debt.
8. Because his honor erred in holding that the plaintiff is liable for fee under said bond and mortgage to defendant’s attorney.
9. Because the decree of his honor is not supported by the testimony and is contrary to the same.
There are really three points here involved. First. Was Stephen Jackson the agent of the defendant, and as such entitled to receive payments on the bond here sued on, which defendant inequity should be made to recognize? Second. Admitting that the first inquiry should be decided adversely to defendant, was
It is not like'the case of Adrian & Vollers v. Lane, 13 S. C., 188, for in that case the declarations of Col. Andrews, who was plaintiffs’ agent, wore made long after the transactions he had conducted for his principal had ceased. As remarked by Chief Justice Mclver, “The rule that there is no presumption that an agent to sell has the power to rescind the sale or materially modify its terms after it has become an executed contract, is well
Thus we conclude that at that time, 11 January, 1881, the plaintiff was justified in law in regarding it proper to make payments on this bond and mortgage to Col. Jackson. Let us see if there were any restrictions, by word or act, of the defendant upon this construction by the agent of his powers as such agent. The very same year a large amount, $219, is loaned for the defendant by Col. Jackson, as his agent, to the plaintiff, secured by lien on crop and mortgage of personal property. The defendant says he furnished some of this money paid through the hands of his father, Col. Jackson, to the plaintiff, and says: “I have never been paid this money. I suppose it was paid to my father. * * * If this money has been paid to my father, I don’t want it paid any more.” This is where vye fear the' Circuit Judge failed to grasp the true relation established by the testimony in this case between the defendant and his father, Col. Jackson, as his agent, with the plaintiff. Now, courts are to have regard in construing human conduct to' what course is pursued by men of ordinary sense under similar circumstances.. Whoever heard of a poor man having a loan of $219, secured by a lien on his crop and a chattel mortgage, being .allowed for eight long years to go without a demand being made upon him for a settlement ? It is not what men of ordinary sense allow to such debt
The plaintiff may and does injure himself by too much strong drink, but he remembers when he pays out money. Col. Jackson loaned the plaintiff $85 of his own money in 1.882. Besides, how did defendant get in 1885 from plaintiff 35 bushels of oats? Did not the defendant in his testimony say, “I got 35 bushels of oats from Knight, my father told me he had paid for fifty bushels; he would not let me have but 35 bushels. I told him I did not get the amount of oats that my father had paid for, and he could see my father about that.” (Italics ours.) Again, why was no effort made to collect this bond and mortgage by defendant during his father’s life-time ? Col. Jackson died in fall of 1887. Very early in 1888, and persistently and continuously from that time forward, no time has been lost by defendant in his efforts to collect the bond and mortgage he held against the plaintiff. He seemed eager after Col. Jackson’s death to see the receipts in plaintiff’s possession.
•Second. The agreement signed by plaintiff was in these words:
We feel constrained to reverse all of the decree of the Circuit Judge, except that part thereof which relates to the attorney’s fees of $75. All of the conclusions of the referee’s report are adopted, except that relating to the $75 attorney’s fees. The final decree in the Circuit Court should allow the plaintiff, as he prays for leave to do. to pay the true indebtedness, principal, interest, and counsel fee, before ordering the land sold to pay the same. In other words, it should be in the alternative, requiring the plaintiff to pay his true indebtedness and the counsel fee on or before a day certain, or on failure to do so, that the lands be -sold for that purpose.
It is the judgment of this court, that the judgment of the Circuit Court in this case- be modified in accordance with the principles herein announced, and that for that purpose the cause be remitted to the Circuit Court,