Carolina Nat. Bank of Columbia v. City of Greenville

• Decision Date: 29 April 1914
• Docket Number: 8835.
• Parties: CAROLINA NAT. BANK OF COLUMBIA v. CITY OF GREENVILLE ET AL.
• Court: South Carolina Supreme Court

81 S.E. 634

97 S.C. 291

CAROLINA NAT. BANK OF COLUMBIA v. CITY OF GREENVILLE ET AL.

No. 8835.

Supreme Court of South Carolina

April 29, 1914

Modification of Opinion May 7, 1914.

Appeal from Common Pleas Circuit Court of Greenville County; S.W. G Shipp, Judge.

Action by the Carolina National Bank of Columbia, S. C., against the City of Greenville and others. From a judgment for plaintiff certain of the defendants appeal. Affirmed.

The following is the complaint of the plaintiff:

"(1) That the plaintiff is a corporation created under the National Banking Act, its principal place of business being in Columbia, S. C.

(2) That the city of Greenville, S. C., is a municipal corporation created under the laws of said state, and that W E. Beattie, W. C. Gibson, and W. C. Cleveland constitute the paving commission of said city of Greenville under an act of the Legislature and ordinances of the city council, and as such were vested with the power of making contracts for the paving of said streets, and had control over the execution of said contracts and for the payments to be made for paving and for public work.

(3) That on or about the 9th of August, 1910, Wm. F. Bowe and T. C. Page, partners trading under the firm name of Bowe & Page, entered into a contract with the said city of Greenville, whereby the said Bowe & Page were to provide materials and lay and construct paving and storm sewers and curbing on certain streets in said city for an amount specified in said agreement.

(4) That while engaged in the performance of said contract the said Bowe & Page applied to plaintiff for several large loans to be used in the furtherance of said contract, and the plaintiff agreed to make certain advances of money on condition that the said Bowe & Page would secure the plaintiff for all such advances by the assignment of all sums to become due to the said Bowe & Page, and the said Bowe & Page did, in pursuance of said agreement, execute unto the plaintiff the assignment of all amounts to become due to them under said contract, said assignment being dated September 2, 1910, a copy of which is hereby attached marked 'Exhibit A,' to which reference is craved as part of this complaint.

(5) That the city of Greenville and paving commission were duly notified of said assignment and a copy of same was filed with the city of Greenville. That under said assignment the plaintiff advanced to the said Bowe & Page considerable sums of money, taking therefor the notes of the said Bowe & Page, and which were renewed from time to time, and which are now represented by two notes as follows: One dated July 20, 1911, payable 30 days after date, and promising to pay the sum of $10,000, with interest after maturity at the rate of 8 per cent. to be paid annually, and agreeing to pay all costs of collection, and 10 per cent. as attorney's fees if not paid at maturity, said note stipulating on its face that it was secured by the assignment of the said contract of the city of Greenville, and the other note being dated August 2, 1911, payable 60 days after date, and promising to pay the plaintiff the sum of $500, with interest after maturity at the rate of 8 per cent. per annum, and the costs of collection, including 10 per cent. as attorney's fees if not paid. Said note stipulated on its face that it was secured by the assignment of said contract of the city of Greenville. That as further security for the moneys advanced, the said Bowe & Page, on May 30, 1911, made a further assignment in writing unto the plaintiff of said contract of which due notice was given to the city of Greenville, and the paving commission.

(6) That there is now due to the plaintiff by the said Bowe & Page for moneys advanced by the plaintiff to the said Bowe & Page, under the terms of said assignments, the following sums, to wit: $10,000 with the interest thereon from August 20, 1911, at the rate of 8 per cent. per annum, together with 10 per cent. as attorney's fees, and the further sum of $500, with interest thereon from October 2, 1911, at the rate of 8 per cent. per annum, together with 10 per cent. as attorney's fees, said sums being represented by the notes as aforesaid, and the sum of $126.45 overdraft, with interest from July 22, 1911, and the sum of $56.72 overdraft, with interest from August 17, 1911.

(7) That said notes were placed in the hands of plaintiff's attorneys for collection long prior to the bankruptcy proceedings against Bowe & Page, hereinafter referred to.

(8) That some time during August, 1911, the city council of Greenville, S. C., and the paving commission, by some arrangement had between them and the said Bowe & Page, took over the said contract and undertook to complete the same, and the plaintiff is informed and believes that the said city council and the paving commission have completed the said contract, and there is a large sum of money due by the city of Greenville on account of said contract. That the plaintiff has demanded payment of its indebtedness against the said Bowe & Page under the terms of the assignments held by the plaintiff, as aforesaid, but the city of Greenville and the paving commission have declined to make payment thereof.

(9) That some time in the fall of 1911, the said Bowe & Page were adjudged bankrupts in the District Court of the United States for the District of South Carolina, and W. C. Cothran, W. H. Grimball, and Chas. Pearlstine were duly appointed trustees of the bankrupt estate, and plaintiff is informed and believes that said trustees claim some interest in the amounts due by the said city of Greenville under said contract of Bowe & Page, and they are made parties to this proceeding in order that they may set up their claim.

(10) That the plaintiff has endeavored to secure a full accounting at the hands of the city of Greenville for all moneys due under said contract, but that the officers of said city of Greenville claim that they have not yet made up an account, and cannot give a definite statement of all matters invloved in the adjustment of the amounts due to the plaintiff.

Wherefore, the plaintiff prays: First, that the said city of Greenville and the said paving commission do fully account for all their acts and doings with reference to the contract with the said Bowe & Page, and that the amount due by the said city of Greenville under said contract be ascertained; second, that out of the moneys which are in the hands of the city of Greenville, or ought to be in the hands of the said city of Greenville, there be paid the amount due on the said two notes to the plaintiff, together with interest at 8 per cent. and 10 per cent. as attorney's fees, and the amount of said overdrafts with interest; third, for the costs of this action and for such other relief as may be just."

Exhibit A.

"State of South Carolina. County of Richland. Whereas, W. F. Bowe and T. C. Page, partners trading and doing business under the firm name of Bowe & Page, have entered into a contract with the city of Greenville, in the state of South Carolina, to do and perform certain paving in the said city, as set forth in a contract executed by and between the said city of Greenville, and the said Bowe & Page, of date the 9th day of August, 1910, and specifications thereto attached; and whereas, the said Bowe & Page have borrowed from the Carolina National Bank, the sum of five thousand dollars ($5,000.00) to be used in the execution of the said contract, as evidenced by the note of the said Bowe & Page, of $5,000, dated Sept. 2, 1910, payable November the tenth after date, to the order of the said Bowe & Page, and by the said Bowe & Page indorsed to the Carolina National Bank: Now, in order to secure the payment of the said note as the same shall become due and payable, and any and all renewals thereof, or any further amounts which may be borrowed by the said Bowe & Page from the said the Carolina National Bank in the execution of the said contract, which said sum so borrowed shall be expressed in their note or notes to be hereafter executed, we, the said Bowe & Page, do hereby assign, transfer and set over to the said Carolina National Bank of Columbia, all sum or sums of money which shall become due and payable to the said Bowe & Page under the said contract; and we, the said Bowe & Page do hereby authorize and direct the said city of Greenville to make all vouchers for the payment of work done under the said contract, payable to the order of the said Carolina National Bank as the work progresses, and whenever, from time to time payments shall become due and payable under the said contract. And the said Bowe & Page agree further that a copy of this assignment shall be filed with W. E.

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