44 S.C. 81 | S.C. | 1895
Lead Opinion
The opinion of the court was delivered by
The only question presented by this appeal is whether the Circuit Judge erred in holding that the contract which constitutes the basis of the action was tainted with usury, involving incidentally questions as to the competency of the testimony. It is true, that the exceptions, both on the part of the plaintiff and on the part of the defendant, Martha A. Baxley, present various other questions, which, however, cannot arise unless the plea of usury should be sustained, and, as we do not think that the plea of usury has been established, these other questions need not be considered or stated.
It appears that on the 10th of April, 1886, the defendant, Baxley, executed her note, whereby she promised to pay to the plaintiff, five years after the date thereof, the sum of $300, with interest thereon at the rate of eight per centum per annum, the interest being represented by coupons attached to the note; and to secure the’payment thereof, the said defendant, on the same day, executed a mortgage to the plaintiff on certain real estate situate in the County of Barnwell, S. C. All of the interest coupons except the last seem to have been paid, and this, together with the principal, still remaining due and unpaid, this action was commenced on the 19th of October, 1891, to foreclose said mortgage. The defendant, Martha A. Baxley, answered, admitting the execution of the note and mortgage, but pleaded usury, and set up a counter-claim for twice the
The testimony was taken by a special master appointed for that purpose, and reported to the court, and the case was heard upon the testimony so reported, as well as certain testimony taken by commission, together with the exhibits and the testimony of the witness, Brewster, taken at the trial, all of which is set out in the “Case” by his honor, Judge Norton, who rendered his decree sustaining the plea of usury, and sustaining the plea of the statute of limitations to so much of the counter-claim as arose prior to the 6th of August, 1889, and rendered j udgment in favor of plaintiff for the amount ascertained by him to be due, without costs or counsel fees, which he held invalid under the usury law. From this judgment both plaintiff and defendant, Martha A. Baxley, appeal upon the several grounds set out in the record.
The Circuit Judge, in his decree (which, together with the exceptions thereto, should be incorporated in the report of the case), uses this language: “Numerous objections were made and noted b.y the plaintiff to the relevancy and competency of the testimony adduced on the part of the defendant, Martha A. Baxley, to establish the agency relied on by her, and in argument at the hearing; but, in the view I take of the case, it will not be necessary to pass upon them. Of the $300, Mrs. Baxley received $215 cash, $25 was paid to W. EL Duncan for preparing abstract of her title, and $60 was retained as brokerage commissions for Duncan and the Corbin Banking Company. The decisions in our own State and elsewhere, under circumstances which are not distinguishable from those proven in this case, hold the transaction usurious. I was more impressed by the witness, Brewster, that he was thoroughly convinced that the scheme to obtain excessive interest was impregnable, than by any statement of fact which would distinguish this from the well considered cases above alluded to.”
Before proceeding to consider the question raised by this
But it is contended that it must be presumed from the alleged fact that, while Duncan and the Corbin Banking Company may have been the agents of Mrs. Baxley in procuring the loan, they were also the agents of the plaintiff company in making the loan. It will be observed that the Circuit Judge makes no finding of fact upon this point; he simply says that “the decisions in our own State and elsewhere, under circumstances which are not
First, as to the competency of the testimony offered to establish the fact that Duncan was agent of the plaintiff company, raised by plaintiff’s second exception. We think it is too clear to admit of argument that the fact of agency cannot be proved by the declarations of the alleged agent; for, while it is true that after the fact of the agency has been established by evidence aliunde, the acts and declarations of the agent within the scope of his agency are binding on the principal; yet it is well settled that the declarations or acts of the alleged agent are not competent to prove the fact of agency. As is said in Martin v. Suber, 39 S. C., at page 535: “It would be a very dangerous doctrine to establish, that one person could be made liable for a debt contracted by another simply by the declarations of the person contracting, the debt that he was acting as agent of the person sought to be charged.”. See, to same effect, 1 Greenl. Ev., p. 158, note b, and the cases there cited; also Renneker v. Warren, 17 S. C., 139. It seems to us that the objections to the testimony of Duncan’s declarations, relied on to establish the fact that he was agent of the plaintiff, were well taken. Rejecting this incompetent testimony, there is literally no evidence either showing or even tending to show that either Duncan or the Corbin Banking Company were the agents of the plaintiff company.
It is very[obvious that the courf assumed as one of the facts in the Brown case (whether correctly or not it is needless now to inquire) that the agreement to pay the fl,500 commission was known to the lenders at the time they made the loan, for
■ The judgment of this court is, that the judgment of the. Circuit Court in this case be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry into effect the views herein announced.
Rehearing
In this case there was a petition for rehearing, which was refused by an order passed May 14, 1895,