64 S.E. 403 | S.C. | 1909
Lead Opinion
May 11, 1909. The opinion of the Court was delivered by
This action was brought by J.D. Whittle, the assignee of F.M. Mixon, upon a sealed note and mortgage of real estate, given as security, made by Mrs. Ellie Brooks Jones, for the purchase money of a pressing club, its equipment and good will. This note was dishonored by the defendant, Mrs. Jones, who claimed that Mixson had misrepresented the value of the business, and hence that there was failure of consideration. The cause was referred to the master and after the filing of his report, the plaintiff applied to the Circuit Court for an order referring the case back to the master for further evidence. This motion was denied. Thereafter, the cause was heard by Judge Gary on the pleadings and the evidence; and though his Honor found that had Mrs. Jones proceeded differently, she would have been entitled to relief, he held that she had put herself beyond the aid of the Court by failing to rescind the contract and gave judgment for the plaintiff for the full amount of the note and mortgage. On appeal, this Court, holding that the omission of Mrs. Jones to seek a rescission of the contract and of her sale of the property to Mixson did not deprive her of the right to rely upon the defense of misrepresentation, modified the judgment of the Circuit Court *553
and remanded the case to that Court for the purpose of determining the amount due on the plaintiff's mortgage,
The appeal turns on the question whether Judge Gary's order, refusing to refer the case back to the master to take further testimony, was binding on Judge DeVore, when the cause came before him for trial. In Wilson v.York,
There can be no doubt that the defendant, Mrs. Jones, is entitled to the benefit of the evidence already introduced by her. The order of Judge DeVore does not contemplate that she shall be required to reintroduce that testimony, but that both parties may introduce additional evidence.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
May 11, 1909.
Addendum
All the points mentioned in this petition were fully considered and decided in the opinion of the Court. The petition for a rehearing is refused, and the order staying the remittitur is revoked. *555