International Harvester Co. of America v. Monroe Banking & Mercantile Co.
| Decision Date | 29 February 1916 |
| Docket Number | 9280. |
| Citation | 87 S.E. 1012,103 S.C. 254 |
| Parties | INTERNATIONAL HARVESTER CO. OF AMERICA v. MONROE BANKING & MERCANTILE CO. ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; M. F Ansel, Special Judge.
Action by the International Harvester Company of America against the Monroe Banking & Mercantile Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.
Haynsworth & Haynsworth, of Greenville, for appellant.
Townes & Earle, of Greenville, for respondents.
The action is in equity, and is to require the defendant to deliver to the plaintiff a mortgage on land, and for the establishment thereof. The judgment below of both master and court was for the defendants, and the plaintiff has appealed.
The transaction was had in the fall of 1914, when the country was almost in the throes of bankruptcy incident to the great war. At that time the defendant owed the plaintiff $3,000, and could not pay, and the plaintiff was pressing for payment. The parties then made a parol contract, whereby the plaintiff was to get security, and the defendant was to get a year's time in which to pay the debt. This suit is about those terms and the performance of them. The defendant got the time; the plaintiff got only a part of the security.
The master found: (1) That, for an extension of credit granted to the defendant by the plaintiff, R. A. Monroe, among other things, agreed to give the mortgage, and the mortgage was actually signed by him; (2) that the mortgage was never delivered, but was kept by Monroe for the purpose which he had of having his wife renounce dower; (3) that the plaintiff at first declined to accept the mortgage without a renunciation of dower; (4) that the defendant Monroe had the legal right to refuse a delivery of the mortgage without the dower renounced; (5) and that though the plaintiff was subsequently willing to take it so.
The circuit court found: (1) That Monroe only agreed to deliver a mortgage with dower renounced; and (2) that the defendant first refused to accept any other; and (3) that the two contracting parties did not agree, the one to deliver, and the other to accept, an unrenounced mortgage, and therefore they came to no common ground of agreement.
The exceptions are five; they need not to be stated; they put in issue those conclusions of fact and of law reached by the master and court. About some things done there is really no issue betwixt the parties. They are these:
At the time in question, the fall of 1914, the plaintiff held nine past-due notes of the defendant, aggregating some $3,000 which defendant could not pay. For these, and in the place of them, the defendant then executed to the plaintiff two notes payable a year hence, in the fall of 1915. That was plaintiff's part of the contract, and it was performed. The two new notes were executed by the defendant and received by the plaintiff. Therefor the defendant agreed to do the three things, and two of them it did, to wit: It made the trust deed of acknowledgment, and it delivered to the plaintiff certain customers' notes which had been made to the defendant. The third thing which the defendant promised to do in order to secure the extension was to execute to plaintiff a mortgage on land. It proceeded so far about that matter as to sign the instrument before two witnesses. Had the paper so prepared been then actually put into the plaintiff's hands and by it accepted, the whole transaction would have been executed and ended. There is no question about that. Why ought not the instrument, as it was executed, to be now delivered? The plaintiff performed its part of the contract; the defendant did so in part. Why not wholly? The burden was on the plaintiff to show why the defendant should wholly perform, and we think it has discharged the duty.
The contract to give the mortgage rested in parol. It nowhere directly appears from the testimony of either side that the plaintiff, when the contract was made, exacted a mortgage with dower renounced, or that the defendant agreed to give such a mortgage. So far as the words of the witnesses go, dower was not mentioned. The inchoate right of dower abode in the wife and it was hers alone to contract about. The only contract proven was that the defendant agreed with the plaintiff to execute to it a mortgage on this land. Such an instrument was actually signed. The defendant, with a verbalism that suggests art, admits that it was "signed" but not "executed." Manifestly, if the agreement was for such a mortgage as that which was made, then the plaintiff is now entitled to have it, unless it has done some act to forfeit its right. The plaintiff strongly contends that the paper was not only signed, but delivered into its hands, and is now constructively there. We think the master might well have so concluded from the testimony; but we deem it not necessary to disturb his conclusion thereabout, concurred in by the court. The master thought there was no delivery. ...
To continue reading
Request your trial