14 S.C. 341 | S.C. | 1880
The opinion of the court was delivered by
This was an action on a sealed note in the following words:
“$1616.51.
“ One day after date we, or either of us, promise to pay W. S„ Sharpe, trustee of Jane N. Neville, one thousand six hundred and sixteen 51-100 dollars, for value received, with interest from date at the rate of twelve per cent, per annum. Interest to be paid annually, as witness our hands and seals.
“May 1st, 1875.
(Signed) “ Thos. B. Lee. [l. s.]
“Miriam E. Lee. [l. s.]
“ E. Preston Earle.” [l. s.]
On April 3d, 1880, the sum of $2255 was paid, which left, due the sum of $447.63, if interest is counted at “ twelve per cent, per annum and payable annually,” but if it is counted at seven per cent, per annum, after it became due, the note was paid in full. The defendant made that question by,way of demurrer “ that the complaint did not state facts sufficient to constitute a cause of action.” Judge Mackey sustained the demurrer and dismissed the complaint. The defendant appeals to this court on several grounds, which all state nearly the same proposition, in different forms, as that contained in the following:
“1. Because the sealed note was a due paper to bear interest at twelve per cent, annually.”
The n'ote was given on May 1st, 1875, prior to the' re-enactment of the usury law of 1877, (16 Stat. 325,) when it was not unlawful for the parties to agree in writing, signed by the party to be charged therewith, for any specific rate of interest.. Gen. Stat. 318. The question, then, is purely one of construction. What was the contract of the parties as expressed by the instrument itself? Was it to bear interest at twelve or seven per cent., or at twelve per cent, until due and seven per cent, after due ? It is not necessary to review the many cases in our books upon, the subject. They have been collected and arranged under proper heads in the appendix to Johnstone’s Equity Digest, p. 165. The general rule may be stated in the words of the court in the case of Langston v. S. C. Railroad Company, 2 S. C. 248: “ If the debt bears a fixed rate of interest
It is not the province of the court to make contracts for parties, but to construe them in order to give effect to the intention. We have no doubt of the intention here.
The order dismissing the complaint should be reversed, and it is so ordered.