Cooper-Smith Co. v. Bell

• Decision Date: 01 October 1926
• Docket Number: 12076.
• Citation: 134 S.E. 658,137 S.C. 1
• Parties: COOPER-SMITH CO. v. BELL (three cases).
• Court: South Carolina Supreme Court

134 S.E. 658

137 S.C. 1

COOPER-SMITH CO. v. BELL (three cases).

No. 12076.

Supreme Court of South Carolina

October 1, 1926

Appeal from Common Pleas Circuit Court of Horry County; S.W. G Shipp, Judge.

Three actions by the Cooper-Smith Company against R. L. Bell, Della Bell, as administratrix of the estate of J. L. Bell deceased, and O. J. Bell. From judgments for plaintiff defendants appeal. Reversed and remanded for new trials.

Sherwood & McMillan, of Conway, for appellants.

H. H Woodward, of Conway, and W. F. Stackhouse, of Marion, for respondent.

COTHRAN J.

These cases were tried together on circuit and in this court. Each is an action upon an account for goods sold and delivered. The account against R. L. Bell is $1,123.72; against Della Bell as administratrix of the estate of J. L. Bell, $1,212.50; and against O. J. Bell, $894,92. The accounts are dated prior to January 1, 1921. The cases depend upon precisely the same facts and involve the same principles of law. For convenience therefore we will consider the case of R. L. Bell.

On January 1, 1921, R. L. Bell owed the plaintiff quite a large account and plaintiff was pressing. On February 8, 1921, he had stored in the Planter's Warehouse, of Conway, 25 bales of cotton, for which he had received from the warehouse company some kind of a receipt. It is not set forth in the record and appears to have been an exceedingly informal receipt, ticket, or stub. On that day he delivered it to Cooper-Smith Company, the plaintiff, and received from them a paper in form as follows:

"February 8, 1921. Received of Mr. R. L. Bell, of Wampee, S. C., twenty-five (25) cotton receipts, representing twenty-five bales of cotton as stored in the Planter's Warehouse, at Conway, S. C.; this cotton to Cooper-Smith Company of Conway, S. C., as collateral on his account. Cooper-Smith Company,

By M. R. Smith."

On May 3, 1921, without advertisement and without the written consent of Bell, the plaintiff sold the cotton represented by the foregoing receipt to one J. C. Spivey at private sale for 7.58 cents per pound, and credited the account of R. L. Bell with the net proceeds of sale, $863.35, leaving a balance unpaid, as stated above, of $1,123.72.

The complaint was in the usual form for goods sold and delivered. The answer alleged the pledge of the cotton, that it had been unlawfully sold and converted, and that this unlawful sale and conversion operated as a satisfaction of the debt sued upon.

At the close of the testimony the defendant moved for a directed verdict in his favor upon the ground that the cotton pledged as security had not been advertised and sold in accordance with law. The motion was refused. After the charge of the presiding judge, the jury rendered a verdict in favor of the plaintiff for $1,294.02 (reduced on motion for new trial to $1,250.07), which represented the balance due on account with interest. The defendant has appealed.

It appears that the circuit judge held that the pledge of the warehouse receipts amounted to an oral pledge of the cotton in the warehouse, and that as an oral pledge the transaction did not come within the terms of section 5628, vol. 3, Code of 1922, requiring advertisement and sale at public outcry. His position is sought to be maintained by the plaintiff's counsel under the case of Sellers v. Hancock, 42 S.C. 40, 20 S.E. 13. The section referred to is as follows:

"When any personal property under pledge, mortgage or hypothecation is to be sold for the purpose of satisfying the loan or debt secured by such pledge, mortgage or hypothecation, the pledgee, mortgagee or person holding the instrument showing the hypothecation shall advertise the time and place of said sale by posting a notice thereof, in writing, at least fifteen (15) days before such sale in three (3) public places in the county in which such personal property may be found, one of which shall be the courthouse door, or shall publish the same at least two weeks in a newspaper published in his county, unless the person making such pledge, mortgage or hypothecation, or his legal representative, shall consent, or shall have consented, to a sale in some other mode or at some other notice, such consent to be expressed in writing."

We are not at all satisfied with the decision in Sellers v. Hancock supra. The idea that the section applies only to written pledges appears to have been based upon the words, "holding the instrument." Considering the object to be accomplished by the act, the duty of protecting a pledge, whether oral or in writing, and the rights of the pledgor, we are justified in imposing a strict construction upon the phrase quoted. Grammatically it refers only to hypothecation. We think therefore that an oral pledge of...