Simpson v. Cox

• Decision Date: 16 August 1913
• Citation: 79 S.E. 102,95 S. C. 382
• Court: South Carolina Supreme Court
• Parties: SIMPSON. v. COX et al.

79 S.E. 102

(95 S. C. 382)

SIMPSON.

v.COX et al.

Supreme Court of South Carolina.

Aug. 16, 1913.

Appeal from Common Pleas Circuit Court of Anderson County; George E. Prince, Judge.

Action by W. A. Simpson against J. F. Cox and others, for foreclosure of a mortgage. From a judgment for plaintiff, the defendant named appeals. Affirmed.

Martin, Greene & Earle, of Anderson, for appellant.

Bonham, Watkins & Allen, of Anderson, for respondent.

HYDRICK, J. [1] On July 31, 1908, the defendant Cox gave plaintiff his note for $2,300, payable six months after date, and secured same by mortgage. Plaintiff discounted the note at the Farmers' Bank of Williamston. Defendant made several payments on the note at the bank, and on April 24, 1909, renewed it for $1,341.09, due six months thereafter, plaintiff indorsing the renewal. On November 15, 1909, the Farmers' Bank of Williamston demanded payment. Defendant having failed to pay it, plaintiff agreed that if the bank would have defendant execute a renewal note for the amount due, he would indorse it and get.the Bank of Piedmont to discount it. At that time Cox owed the Farmers' Bank of Williamston another note for $75, which was, by consent of the parties, included in the renewal note, which was discounted by the Bank of Piedmont. Defendant having failed to pay this last note at maturity, plaintiff paid it to the bank, and brought this action for foreclosure.

The answer set up the following defenses: A general denial, partial failure of consideration, usury, and a counterclaim for usurious interest paid. The referee found against all the defenses, and reported the amount due as alleged in the complaint. On exceptions to the report, only two questions were argued to the court, to wit, that the referee erred (1) in not sustaining the plea of usury, and (2) in including the $75 note in the mortgage debt. The court held that the last note was usurious, because discount at the rate of 8 per cent. per annum was added to its face, when by its terms it was to bear only straight interest at that rate, and decreed accordingly. But with regard to defendant's contention that the first renewal note was also usurious for the same reason, the court held that, as the transaction was entirely between the defendant and the Farmers' Bank of Williamston, the plaintiff getting none of the usurious interest charged by the bank on that renewal, and having nothing to do with it, except to indorse the renewal note, which was again voluntarily renewed by the defendant, the transaction was an executed one, and even though that renewal note was usurious, the plea of usury therein could not avail the defendant against the plaintiff. Upon this point, we agree with the circuit court. With regard to that renewal, the defendant is in the same position he would have been if he had paid the note at maturity. In that event he would have had no cause of action against the plaintiff, who did not receive any usurious interest, or any benefit thereof. On the other hand, if plaintiff had been allowed to recover in this action according to the face of the last renewal note, he would have received the benefit of usury therein.

The court refused to consider the assignment of error in including the $75 note in the mortgage debt, on the ground that none of defendant's exceptions properly raised that question, holding that defendant's fifth exception, which was alone relied upon for that purpose, was too general. That exception was as follows: "Error of said spe-cial referee in finding as a matter of fact, and so reporting, the amount to be due plaintiff on said debt to be $1,490 principal and $149...