37 S.C. 145 | S.C. | 1892
Lead Opinion
The opinion of the court was delivered by
In the thirty-second volume of the South Carolina Beports, at pages 238 to 243 inclusive, may be found the report of the first trial of this case, and the judgment of this court on the appeal therein. Briefly, the plaintiff complained on a note for $440, executed under seal by Wash. Poole, and W. H. Bagwell as his surety. There had been an addendum thereto, signed by Poole alone, whereby the interest to be [laid was fixed at eight per cent, per annum, and the fact of the alteration was set out in the defendant’s answer. At the hearing the Circuit Judge held thatsuch addendum was a, nudum pactum, and did not influence Bagwell’s (the surety’s) liability thereon. On appeal, this court held that such addendum became a part of the contract evidenced by the note, as much so as if the same had been interlined therein, and reversed the judgment of the Circuit Court in favor of the plaintiff.
The parties being already at issue under the original pleads ings, the cause came on for a trial before Judge Kershaw anda jury, on the 17th August, 1891, at a regular term of the Court of Common Pleas for Spartanburg, when the plaintiff obtained a verdict for $811.90, and judgment being entered thereon, an appeal was taken therefrom on many and various grounds.
The next question suggested by the appeal here relates to the admission of the testimony of the witness Boss:
ud. In asking the witness this question, ‘You know whether or not you were induced by that act to pay the money?’ after witness had just stated that he could only give the circumstances, and, as he did pay the money afterwards, that must
The main question involved in these grounds of appeal relates to the effect in law of a certain line of human conduct, and, as far as it is practicable, we will endeavor to meet the issue fairly and fully. But, before announcing our conclusion, it is proper to be observed that the Circuit Judge, in his charge to the jury, did not confine his utterances to the single phase of Bagwell’s conduct, the silence maintained by him when his principal, Poole, wrote and signed the addendum, but he included, also, his other conduct during the entire transaction. It is true that the Circuit Judge did comment upon Bagwell’s silence itself, yet the whole of the charge shows that he impressed upon the jury how the law would regard the other elements that made up the conduct of Bagwell on the occasion referred to.
In all human transactions the element of good faith is anxiously looked for and imperatively demanded in a judgment of approval. The maxim that “silence is golden” is not accepted in the law, if it is the duty of man to speak. If a man knows of a defect, and remains silent, so that he thereby imposes upon his fellow-man, the law does not approve of such silence. If a man with a secret interest in property attends the sale thereof, whereby it is announced that the purchaser at such sale will receive good title to the thing sold, and after the sale is made, such person holding a secret bona fide interest in the article of property so sold, attempts to assert his interest, the law views his conduct with disapproval. When a man who holds the money of another for investment on certain terms that are made known to the parties seeking the loan of such funds, and when a note is presented to evidence the terms of the loan, and the agent discovers that the note is not in accordance with the terms of such investment, and makes known wherein such note is defective, and declines to accept such note or part with the money, until there is a compliance with the terms in question, and thereupon one of the proposed borrow
It may be as well to state frankly that we do not perceive, under the proofs here, what may be technically called a new contract. It is true, it is sought by the addendum, written at the foot of the note, to enlarge the interest from seven per cent, to eight per cent, per annum, and this court has decided that such act was an alteration of the contract as first stated. Would it be true that the addition of a “wing” to a dwelling-house made it, so to speak, anew house? We have no difficulty, so far as this phase of the question here raised is concerned. In order for the plaintiff to avail himself, in his judgment on the note of the increased rate of interest from seven to eight per cent., he should have amended his. complaint. It is not true that the defendant pleaded in his answer the terms of the alteration of the contract. The answer avoids setting up this writing itself; it only seeks advantage from the fact of an alteration of the contract in a material point of view. Such being the case, we fear that the plaintiff must suffer a
We have thus carefully stated from the “Case” itself the facts in the language there employed. The statement refutes the objection. The action of the presiding judge was perfectly correct. Harley v. Neilson, 1 Rich., 483; Gatewood v. Moses, 5 Id., 247; where the court said: “As to the remodeling the verdict by sending the jury back, or having it written according to the intention of the jury, in the court room, there is nothing wrong. The course pursued by the judge is in exact conformity to the practice which we all pursue, and which our predecessors pursued from the earliest days of the administration of justice of which we have any knowledge.” We, therefore, overrule this ground of appeal.
Concurrence Opinion
concurring in the result. The former decision in this case must be regarded as finally determining : 1st. That the addendum to the note amounted to an alteration of the note in a material respect—it being the same,, in effect, as if the words of the addendum had been incorporated, by interlineation, in the body of the note. 2d. That such an.
In this case a petition for a rehearing was filed by defendant and appellant, on the grounds (1) that the amount, $102.90, ordered to be remitted was not the true difference between interest at eight per cent., as found by the jury, and seven per cent., the correct interest, decided by the Supreme Court; (2) that the decision of this court did not fix the date at which the deduction should be made; (3) that this being a law case, this court had no jurisdiction to pass upon the several facts which were necessary to be determined in ascertaining the amount due on a calculation of seven per cent., no such facts having-been passed upon in the court below; (4) that, as there was error in the court below, this court was bound to order a new trial, so that the facts could be passed upon by a new jury; and (5) that the case should have been sent back for an amendment of the complaint.
December 7, 1892, the following order was passed