Allendale Furniture Co., Inc. v. Carolina Commercial Bank

Citation284 S.C. 76,325 S.E.2d 530
Decision Date06 June 1984
Docket NumberNo. 22209,22209
CourtSouth Carolina Supreme Court
PartiesALLENDALE FURNITURE COMPANY, INC., Respondent, v. CAROLINA COMMERCIAL BANK, Petitioner. . Writ Issued

Michael W. Tighe, of Callison, Tighe, Rush, Robinson & Anastation, Columbia, for respondent.

Thomas O. Lawton, Jr., Allendale, and James B. Richardson, Jr., of Ham & Richardson, Columbia, for petitioner.

CHANDLER, Justice:

This petition is from a decision of the Court of Appeals, reversing a judgment of the Circuit Court. See 280 S.C. 247, 312 S.E.2d 569 (S.C.App.1984).

We reverse and affirm the original judgment.

This action involves a $75,000.00 note and real estate mortgage given by Allendale Furniture Company (Company) to Carolina Commercial Bank (Bank), payable on the first day of each month at the rate of $919.96.

From date of execution on April 14, 1974, through September, 1976, payments were timely made; thereafter, they were delinquent from as little as eight days to as much as several months. Bank, while accepting late payments, notified Company on 37 occasions of the need for compliance.

The payment due February 1, 1980, was not received until February 22. It was returned with cover letter advising Company it would be contacted by Bank's attorney regarding the account. According to Bank, the note and mortgage had been placed with its attorney on February 14 for foreclosure.

On March 31 Bank received and returned both the February and March payments. These payments were mailed with Company's cover letter dated March 10, the same date on which Bank commenced its foreclosure action.

The note provides:

If default be made in the performance of ... this note ..., said principal sum with all accrued interest thereon shall become at once due and payable at the option of the holder without further notice (emphasis supplied).

On these facts the Master and Circuit Judge held that the default in payment entitled Bank to accelerate the maturity of the note and foreclose without further notice to the mortgagor Company.

In a divided decision, the majority opinion of the Court of Appeals (majority opinion) reversed and held that Company's late tender on February 22 of the payment due February 1, having occurred prior to some affirmative act by Bank evidencing to Company its election to accelerate, cured the default. We disagree.

The sole issue here is whether some affirmative act constituting notice to Company is required where the note in question contains the "without further notice" provision. We hold that it is not.

In Dargan v. Metropolitan Properties, Inc., 243 S.C. 324, 329, 133 S.E.2d 821 (1963) our Court held:

[W]hen [the mortgagee] placed his note and mortgage in the hands of an attorney for collection or foreclosure, the [mortgagor] was in default and the [mortgagee] had the legal right, without further notice or demand, to declare the entire balance due and commence his foreclosure action. This right could not thereafter be taken away or nullified by a partial tender. 243 S.C. at 329, 133 S.E.2d 821 (emphasis supplied).

The mortgagor in Dargan, as here, had tendered the past-due payment after the mortgagee had instructed its attorney to foreclose, but prior to actual institution of the suit. However, the majority opinion distinguished Dargan on the basis that the tender of the arrearage there did not include an amount for interest on accrued interest, as provided in the note, and was, therefore, defective. We think that the matter of interest on accrued interest in Dargan was an incidental fact only, and was not considered in the decision. Our conclusion on this point is supported by the Dargan Court's reliance upon the earlier case of Shirley v. Parris, 121 S.C. 260, 113 S.E. 788 (1922), in which the late tender was in the correct amount.

In Shirley, not cited or discussed in the majority opinion, the mortgagee was given three separate notes. Each provided that, upon default of any of them, all three should become due and payable. At due date for payment of the first two notes the mortgagor defaulted. All three notes were then turned over to mortgagee's attorney for foreclosure. Prior to institution of proceedings the mortgagor tendered payment under the first two notes, which was rejected and suit commenced. Said the Court:

Default having been made in meeting the payments stipulated, plaintiff's legal right to declare the whole debt due ... and to bring action could not be taken away or nullified by a partial tender.... 121 S.C. at 269, 113 S.E. 788 (emphasis supplied).

When Dargan and Shirley are considered together, it is clear that the language "partial tender", used in both decisions, means that a tender of anything less than the full accelerated amount will not cure the...

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8 cases
  • Litchfield Co. of South Carolina, Inc. v. Kiriakides, 0801
    • United States
    • South Carolina Court of Appeals
    • 26 Mayo 1986
    ...Landlord and Tenant Section 1030 (1970); 51C C.J.S. Landlord and Tenant Section 110b (1968). Cf. Allendale Furniture Co. v. Carolina Commercial Bank, 284 S.C. 76, 325 S.E.2d 530 (1985) (where a mortgage instrument provided that after default the mortgagee could accelerate the balance due wi......
  • U.S. Bank Trust Nat. Ass'n v. Bell
    • United States
    • South Carolina Court of Appeals
    • 31 Agosto 2009
    ...to commence a foreclosure action could not be taken away or nullified by a partial tender.12 See Allendale Furniture Co. v. Carolina Commercial Bank, 284 S.C. 76, 79, 325 S.E.2d 530, 531 (1985); Dargan v. Metro. Props., Inc., 243 S.C. 324, 325, 133 S.E.2d 821, 823 (1963); see also Ford Moto......
  • SOUTHERN ATLANTIC FINANCIAL v. Middleton, 3455.
    • United States
    • South Carolina Court of Appeals
    • 25 Febrero 2002
    ...to notice of default and right to cure has been examined by our courts on several occasions. See Allendale Furniture Company v. Carolina Commercial Bank, 284 S.C. 76, 325 S.E.2d 530 (1985) and Hendrix v. Franklin, 292 S.C. 138, 355 S.E.2d 273 In Allendale Furniture Company, Maker defaulted ......
  • Kirkland v. Wolfson
    • United States
    • South Carolina Court of Appeals
    • 30 Marzo 2022
    ... ... Inc. (OSP). Wolfson's background was in real estate ... law." Smith v. Auto-Owners Ins. Co., 377 S.C ... 512, 515, 660 S.E.2d 271, ... Wolfson relies on two South Carolina cases dealing with ... acceleration clauses in installment notes. See Allendale ... Furniture Co. v. Carolina Commercial ... S.E.2d 530, 530-531 (1985) (permitting the bank to ... accelerate all note payments without ... ...
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