Berry v. Caldwell

• Decision Date: 02 November 1922
• Citation: 114 S.E. 405,121 S.C. 418
• Parties: BERRY v. CALDWELL ET AL.
• Court: South Carolina Supreme Court

114 S.E. 405

121 S.C. 418

BERRY v. CALDWELL ET AL.

Supreme Court of South Carolina

November 2, 1922

Appeal from Common Pleas Circuit Court of Richland County; I. W Bowman, Judge.

Suit by T. W. Berry against Grover C. Caldwell and another. Judgment for plaintiff, and both parties appeal. Modified and affirmed.

Melton & Belser, of Columbia, for appellants-respondents.

N. B Hargrove, of Dillon, and H. P. Green, of Columbia, for respondent-appellant.

MARION J.

The facts out of which this appeal arises are thus stated in the case:

"On September 16, 1919, the defendant Grover C. Caldwell gave to the plaintiff his mortgage, securing his bond conditioned for the payment of $14,000, payable $700 one year after date, $700 two years after date, $1,000 three years after date, $1,000 four years after date, and $10,600 five years after date, with interest at 6 per cent., payable quarterly, said mortgage covering a lot, with the brick building thereon, situate on the eastern side of Main street, between Calhoun and Richland streets, in the city of Columbia, S.C. The bond and mortgage contained a clause that the mortgagee should have the privilege, upon the failure to pay any installment of principal or interest, of declaring the whole debt due and foreclosing the same, and the usual provision for securing and recovering a reasonable sum as attorney's fees in case of foreclosure. Said Grover C. Caldwell, having regularly paid the installments of interest previously falling due, and also the installment of $700 of the principal which fell due on September 16, 1920, on or about the 6th of October, 1920, in consideration of $6,700, conveyed the mortgaged premises to the defendant Mutual Holding Company, subject to the said mortgage, and said company was at the time of the commencement of this action and is still the legal owner of said premises. The Mutual Holding Company is a corporation, of which Mr. August Kohn was the secretary and treasurer. Through oversight the Mutual Holding Company neglected to pay the quarterly interest which became due on December 16, 1921. In the early part of January, Mr. T. W. Berry, who lives at Latta, S. C., wrote Mr. Caldwell for the interest, and, receiving no reply, wrote on the 11th of January, 1921, to Mr. G. T. Pressley, the agent who sold the mortgaged land to Mr. Caldwell. Mr. Pressley replied under date of January 13, 1921, advising Mr. Berry that Mr. Caldwell had recently sold the property to Mutual Holding Company, of which Mr. August Kohn was manager, and suggesting that he write Mr. Kohn and call his attention to the interest being due. Mr. Berry, upon receiving this information, made no effort to and did not notify the Mutual Holding Company or Mr. Kohn that the interest was in arrears, or request the payment of the same, but began this action for foreclosure, by which he undertook to declare the entire debt due, and demanded payment of the full amount of the mortgage debt, together with interest at 6 per cent. and with 10 per cent. attorney's fees."

The defendants by their answer tendered the interest due at the rate of 6 per cent. and denied the right to foreclose and collect attorney's fees. The case was referred to the master, who took and reported the testimony to the court, and it was heard at the fall term, 1921, by his honor, I. W. Bowman, who rendered his decree herein, dated December 9, 1921. The decree adjudged that the mortgage be foreclosed, calculated the interest on the mortgage debt at 6 per cent., allowed attorney's fees in the amount of $350, and fixed the terms of sale at one-third cash, balance payable in equal installments in one and two years. From this decree both the plaintiff and the defendants appeal.

Defendants' Appeal.

The sole question involved is as to the propriety of the circuit judge's allowance to plaintiff of attorney's fees of $350. It is contended (1) that no attorney's fees should have been allowed to plaintiff under the circumstances of this case; and (2) that, if allowed at all, the amount fixed by the decree was excessive.

If the status of the case at the time of the commencement of the action were determinative of this question, we would have no difficulty in concurring in defendants' view that no attorney's fee should be allowed. But the equitable efficacy of the circumstances upon which defendants rely to avoid the payment of attorney's fees cannot be extended to deny to plaintiff the legal right, which was matured by the default in the payment of the interest, to demand payment in full of the debt evidenced by the bond. He had a legal right to exercise his option to declare the entire debt due and to make demand for payment by commencing the action. Bank v. Fudge, 113 S.C. 25, 100 S.E. 628. It may be conceded that the plaintiff was not entitled to claim an allowance of attorney's fees merely by virtue of commencing the action. But, if he was entitled to make demand in that form, and if, having made the demand, he had a legal right to require payment of the principal and interest then due upon the entire debt, it follows that the correlative legal duty of the defendants was to meet the demand by payment, or tender of payment, of the full amount plaintiff was lawfully entitled to recover, viz. the principal and interest of the debt, without the attorney's fees. Acceptance of the tender--which term is here used in the sense of a bona fide offer to pay--would have ended the matter; its refusal would have fixed the equities of the parties as of the date of the tender. Taylor v. King, 97 S.C. 477, 81 S.E. 172.

In invoking the equitable power of the court to nullify the...