Marshall Springs & Co. v. Smith

• Decision Date: 11 March 1910
• Citation: 67 S.E. 129,85 S.C. 196
• Parties: MARSHALL SPRINGS & CO. v. SMITH.
• Court: South Carolina Supreme Court

67 S.E. 129

85 S.C. 196

MARSHALL SPRINGS & CO. v. SMITH.

Supreme Court of South Carolina

March 11, 1910

Appeal from Common Pleas Circuit Court of Hampton County; John S Wilson, Judge.

Action by Marshall, Springs & Co. against E. G. Smith. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

W. B De Loach and W. D. Connor, for appellants. W. S. Smith and W S. Tillinghast, for respondent.

JONES C.J.

This is an action in claim and delivery for two mules, and resulted in a verdict and judgment for defendant for the return of the mules and $225 damages. The plaintiffs present a number of exceptions, but we will confine attention to the questions which must control the appeal.

The undisputed facts are that in 1906 plaintiffs made advances to defendant, which were secured by a mortgage of the two mules in question; that there was a balance due on this debt testified by plaintiffs to be $250, admitted by defendant in his testimony to be $145, and alleged in his answer to be over $200; that on January 21, 1907, defendant executed to plaintiffs another mortgage on said mules for $423.80. Plaintiffs testified that this was to cover the back indebtedness, and to secure advances in cash $50 and in fertilizers $102. It is not disputed that defendant received the $50 advances on the execution of the papers. Defendant claims that he did not receive any fertilizers, but there was no evidence that he ever applied to plaintiffs for fertilizers. According to the contract, the advances in money or supplies or guano were to be expended in cultivation of the soil upon a certain place in Hampton county known as the A. S. Jones place. It is not disputed that before the middle of February, 1907, defendant moved off the A. S. Jones place and carried the mules with him. The contract stipulated: "And it is provided that the said party of the second part may retain possession of the said property until default be made in the payment of said advances, but if the full amount of same is not paid when due or on demand, or if prior thereto the said party of the second part shall break any covenant herein contained, or shall attempt to make way with, or remove said property, or any part thereof from the place where it now is, then, and in either event the said parties of the first part, or their agents, or attorneys, shall have the right without suit or process to take possession of said property wherever...