American Trust Co. v. Bloom

• Decision Date: 15 January 1929
• Docket Number: 12561.
• Citation: 146 S.E. 249,148 S.C. 386
• Parties: AMERICAN TRUST CO. v. BLOOM et al.
• Court: South Carolina Supreme Court

146 S.E. 249

148 S.C. 386

AMERICAN TRUST CO. v. BLOOM et al.

No. 12561.

Supreme Court of South Carolina

January 15, 1929

Appeal from Common Pleas Circuit Court of Charleston County; J. W De Vore, Judge.

Action by the American Trust Company, as receiver, against Marcus Bloom and others. After verdict had been directed for defendants, a new trial was granted, and defendants appeal. Affirmed.

J. N Nathans, of Charleston, for appellants.

Paul M Macmillan and Geo. E. Grimball, both of Charleston, for respondent.

COTHRAN J.

The plaintiff, as receiver of the Security Savings Bank of Charlotte, N. C., sued upon six notes, aggregating $24,000, upon which the defendant Marcus Bloom was either maker or indorser. The notes were of various amounts, and different dates and maturities; all, however, prior to July 10, 1924. The defendant Marcus Bloom admitted the execution and delivery of the notes and his indorsements, and pleaded in general terms payment of the same.

Upon the trial of the case before his honor, Judge De Vore, and a jury, the plaintiff introduced the notes in evidence and testimony that they had not been paid.

The defendants then introduced in evidence a certificate signed by the cashier of the bank to the effect that on July 10, 1924, the defendant Marcus Bloom had placed his signature upon notes due August 31, 1924, of precisely the same tenor and effect as the notes sued upon, except as to dates and maturity. The certificate contained this statement:

" It is further certified that these notes are renewals of past-due notes in which he is interested, as above shown, and that notes previously signed and endorsed by him are voided by the above mentioned renewals, said renewals being those only for which he is bound to us.

The defendant testified that he gave the new notes upon condition that the old notes should become null and void; that the cashier promised to turn them over to him, but had never done so.

The transcript of record shows the following:

"After this testimony, the following took place between the Court and the attorneys:

"Mr. Macmillan: Your Honor, under that testimony, there is nothing else to do but take a non-suit.

"Mr. Nathans: If your Honor please, it is too late for a non-suit now. I ask for a directed verdict, and he can bring suit on the other notes. I feel that I am entitled to a directed verdict.

"Court: I think he is entitled to it.

"Mr. Nathans: I submit I am entitled to a directed verdict.

"Mr. Macmillan: I believe he is right. We have no testimony to rebut that.

"Court: This does not hinder you from suing on the other notes, when suing on the wrong set of notes."

The court then directed a verdict for the defendants.

"A few days thereafter" (as stated in appellant's brief, and therefore it is assumed during the then pending term of court), the plaintiff gave notice of a motion for a new trial upon the minutes of the court and affidavits attached. The purport of the affidavits was that the old notes were not surrendered, for the reason that it was agreed that they should not be surrendered until the defendant Marcus Bloom had procured the indorsement of the new notes by the same parties who had indorsed the old ones, and had paid the accumulated interest; that this had not been done; and that the new notes had never been delivered.

Upon this showing his honor granted the motion in the following order:

"This was an action brought by the Plaintiff as Receiver for an insolvent bank, against the Defendant and others on certain notes, of one which he was the maker and on five he was endorser.

"At the close of the Plaintiff's testimony the Defendant produced a receipt from the cashier of the defunct bank, which purported to show that the notes in suit had been satisfied by the substitution of new notes.

"The Plaintiff stated that the receipt was a surprise and asked for a voluntary nonsuit, which was resisted by the Defendant, and on Motion of Defendant a verdict was directed in favor of Defendants.

"This matter now comes before me on a motion for a New Trial supported by affidavits stating that the receipt given was conditioned on the complete execution and delivery of the new notes which had never been done, and that the defunct bank has not received the new notes.

"I find that the Plaintiff was taken by surprise at the trial on the production of the receipt, and also that the Plaintiff should be entitled to put in the evidence which was set out in the affidavits, and which it discovered after the trial; and it is ordered that a New Trial be granted."

From this order the defendants have appealed.

During the term of court at which a verdict or judgment has been rendered, they, as well at all other orders passed, lie within the breast of the court, with practically absolute...