Union Building & Loan Ass'n v. McNally

• Decision Date: 23 October 1913
• Citation: 79 S.E. 796,96 S.C. 38
• Parties: UNION BUILDING & LOAN ASS'N v. McNALLY.
• Court: South Carolina Supreme Court

79 S.E. 796

96 S.C. 38

UNION BUILDING & LOAN ASS'N v. McNALLY.

Supreme Court of South Carolina

October 23, 1913

Appeal from Common Pleas Circuit Court of Union County; R. W Memminger, Judge.

Action by the Union Building & Loan Association against R. Lindsay McNally. From an order sustaining defendant's exceptions to the master's report, plaintiff appeals. Appeal dismissed, and cause remanded.

The following are the exceptions:

"Plaintiff appellant, for the purpose of appeal to the Supreme Court therefrom, excepts to the intermediate order or decree of his honor Judge Memminger, herein, dated Febuary 14, 1913 upon the following grounds:

"Because his honor erred therein:

"(1) In holding and deciding that the master could not split the loan evidenced by the six hundred ($600) dollars bond into two loans, as he did, to wit, a loan of $400 as of date May, 1901, and a loan of $200 of date of the $600 bond, and sustaining defendant's second and fourth exceptions to the report of the special master, and reversing the master in that particular.

"(2) In holding and deciding that the master, in ascertaining the amounts due plaintiff on the several bonds, must give the defendant credit for all payments as made by him; and sustaining defendant's tenth exception, which is as follows: 'Because the special master erred in not allowing proper credits for each and every item appearing upon defendant's passbook, which was in evidence, and uncontradicted and unquestioned;' whereas, he should have held, as contended by plaintiff, that defendant should not have credit in ascertaining the amounts due on the debts sued on, evidenced by the bonds set out in the case, for interest and premium, paid on the loan appearing on his passbook as made in May, 1901, and which was settled before the $600 loan was made, an entirely different and ended transaction, the interest and premium on which said loan of $400 in May, 1901, was $2.50 per month, and was paid from June, 1901, to May, 1903 (inclusive) being for twenty-four (24) months, amounting to $60, and was paid for the use of money, and on a debt entirely distinct from each and all of the debts sued on in this case, and was a finished and ended and settled transaction, in the settlement of which transaction defendant, or the one for whom he got the money, got credit, in the way of allowance of it as interest paid, on the loan.

"(3) In holding and deciding that in this case the defendant should, at the time of the first loan of $200 (on September 10, 1900, on one share of stock redeemed) receive credit ($225) for two hundred and twenty-five dollars, the amount of the stock payments made on the five shares of stock owned by him, which was assigned to the association as collateral at the date of the bond, as the withdrawal value of said five shares of stock, at that time by the rules and by-laws of the association; and in not holding and deciding that the withdrawal value of the shares of stock, so ascertained, should be applied respectively as credits on the loans and bonds evidencing said loans, for and by which the respective shares of stock were redeemed; and in not sustaining the special master in so holding and reporting; and in sustaining defendant's third exception to the report of the special master. This third exception of defendant's to the special master's report also raised the point that the withdrawal value of the stock at the time of its application on the loan should be increased by allowing interest on the amount of the stock payments at the rate of 6 per cent., but this claim and feature in all the exceptions was withdrawn at the trial; and it is therefore considered that his honor in sustaining this exception did not mean to decide that such interest must thus be added in fixing the withdrawal value of the stock. And there was not a scintilla of evidence to support this part of the exception. The error being that his honor erroneously applied the principles and rules settled and laid down in Bird & Co. v. Kendall, 62 S.C. 178, 40 S.E. 142, and Association v. Holland, 65 S.C. 448, 43 S.E. 978, to this case, where the facts and conditions were very different, and required a modification of the general rules laid down in the latter case (supra), under the license given by the Supreme Court so to do, in the following language in said case: "These rules are not intended to be exhaustive' but are sufficient for the determination of this...