Brice v. Hamilton

• Decision Date: 28 April 1879
• Docket Number: CASE No. 727.
• Citation: 12 S.C. 32
• Court: South Carolina Supreme Court
• Parties: JOHN A. AND ASHBEL G. BRICE, AS ADMINISTRATORS, v. S. P. HAMILTON AND W. A. WALKER.

12 S.C. 32

JOHN A. AND ASHBEL G. BRICE, AS ADMINISTRATORS,

v.S. P. HAMILTON AND W. A. WALKER.

CASE No. 727.

Supreme Court of South Carolina.

Apr. 28th, 1879.

1. Exceptions, which raise questions purely legal, may be reviewed, on appeal, by this court, although no motion was made before the Circuit judge for a new trial.

2. A naked intent in the mind of a debtor, not disclosed or communicated to his creditor, as to the application to be made of moneys paid to such creditor, may not be proven.

3. Section 415 of the code renders a party in interest incompetent to testify as to transactions or communications had by him with a person deceased, in certain cases, and such incompetency is not removed by the introduction of testimony other than that of the representative of the deceased as to the same matter.

4. A memorandum in the handwriting of the deceased, found after his death among his papers, is not admissible in evidence, in behalf of his representatives.

5. The jury were charged that the intention and purpose of the debtor when he made the payment, were to be taken by them as evidence of the application. Held, erroneous.

6. When the debtor directs no application at the time of payment, the rule is that the creditor may make the application at any time before judgment or verdict. Heilburn v. Bissell, Bail. Eq. 430, approved, and Jones v. Kilgore, 2 Rich. Eq. 63, limited.

7. A receipt may be open to explanation, notwithstanding the death of the party to whom it was given.

Before ALDRICH, J., at Chester, November, 1878.

This was an action on a sealed note, given by defendant, Hamilton, as principal, and Walker as surety, to C. S. Brice, the intestate of the plaintiffs. The answer admitted the execution of the note but plead payment, and set out the payment of several sums of money at various dates, by Hamilton to C. S. Brice, and the same payments were also set up by Hamilton as a counterclaim, for money had and received. The plaintiff, in reply, not admitting the counter-claim, alleged that Hamilton was largely indebted to their intestate upon other claims, and that moneys received from Hamilton had been applied by their intestate to such other claims. At the trial the defendant proved by witnesses the receipt by C. S. Brice, of an amount collected on judgment against J. G. Gaffney, and of other moneys belonging to Hamilton. The plaintiff proved that C. S. Brice held other claims against Hamilton besides the notes sued on-a Carter judgment and a due-bill. Hamilton was asked by his counsel as to these several payments and receipts, “what was your intention and purpose, when you allowed C. S. Brice to keep this” money? The questions were objected to, but the court admitted them, and exceptions were taken. The plaintiffs offered in evidence a memorandum found among the papers of their intestate, signed by him and proved to be in his handwriting, which was a statement of amount collected on a certain claim, with a balance stated to be “due Hamilton, to be credited on Carter judgment.” Defendants objected, the objection was sustained and plaintiffs excepted. Plaintiffs proved, by a witness, a receipt from Hamilton to their intestate in full of moneys collected on a judgment of S. P. Hamilton v. J. G. Gaffney. Defendants, in reply, introduced Hamilton to prove that out of the moneys so receipted for, $100 were retained by Brice. Objection by plaintiffs to this testimony was overruled and exception taken.

The plaintiffs then asked the court to charge the jury, that as there was no evidence of application by either the debtor or the creditor of any of the payments proved, the law would then apply all the payments to the satisfaction of the judgment, and the due-bill held by C. S. Brice against S. P. Hamilton, because these debts were unsecured, while the note in suit was secured by a surety. The court refused so to charge, to which the plaintiffs excepted. The plaintiffs further asked the court to charge that a receipt, after the death of the party to whom it was given, was conclusive evidence of settlement in full of the matters therein referred to, unless fraud or mistake were proved, and, therefore, that the receipt set forth above must be taken as a settlement in full, between C. S. Brice and S. P. Hamilton, of the money received from the Gaffneys. The court refused so to charge, to which the plaintiffs excepted.

The court charged the jury that the intentions and purposes of the debtor, when he made the payments, were to be taken by them as evidence of application. To which the plaintiffs excepted.

The court further charged the jury that if there has been no application of the payments proved, then they must apply them, as Hamilton intended they should be applied-to the Walker note. To which the plaintiffs excepted.

The jury thereupon found a verdict for the defendants, and for the defendant, S. P. Hamilton, the sum of $37.55.

No motion was made for a new trial before the Circuit judge. The plaintiffs appealed and moved this court for a new trial, upon the ground that there was error in the several rulings and charges to which exceptions had been taken by them.

Mr. A. G. Brice, for appellant.

Messrs. J. & J. Hemphill and J. H. Rion, for respondent.

The opinion of the court was delivered by

WILLARD, C. J.

This action was by the administrators of C. S. Brice upon a sealed note, the property of their intestate, and the defence consisted of various payments and counter-claims. The evidence disclosed various pecuniary transactions between the defendant, S. P. Hamilton, and the intestate, involving the receipt, by plaintiff's intestate, of various sums of money which defendants claim should have been applied as payments on account of the sealed note in suit, and which plaintiffs contend should be applied to other items of account between the original parties. The question at issue was the right of the plaintiffs to make such application. Various exceptions are presented, some relating to the admissibility of testimony, and others relating to charges by the judge, and refusals to charge. The verdict was for the defendants, and the plaintiffs appeal. A general objection is made by the defendants to the effect that no application was made to the Circuit judge for a new trial, but the appeal is directly from the judgment, and, therefore, as they contend, the exceptions taken at the trial cannot be heard. There is no ground for such an objection. It was competent for the plaintiffs to have moved before the Circuit Court for a new trial, but as the objections to the verdict relate to matters of law alone, and could be heard in this court, the appellants were not bound to submit them to the Circuit judge, on a motion for a new trial, before appealing to this court. There is no provision of the code exacting any such condition to an appeal to this court, and no antecedent practice from which such a rule could be inferred. An appeal from a judgment involves any intermediate order involving the merits and necessarily affecting the judgment, ( Code, § 11,) and this includes all rulings and charges material to the judgment.

The exceptions relating to the admissibility and competency of testimony will be next considered. The court admitted, against the objection of the plaintiffs, the testimony of the defendant, S. P. Hamilton, as a witness, to the effect that at the time when certain...