Guaranty Trust Co. of South Carolina v. Kibler

• Decision Date: 03 October 1916
• Docket Number: 9526.
• Citation: 90 S.E. 159,105 S.C. 513
• Parties: GUARANTY TRUST CO. OF SOUTH CAROLINA v. KIBLER ET AL.
• Court: South Carolina Supreme Court

90 S.E. 159

105 S.C. 513

GUARANTY TRUST CO. OF SOUTH CAROLINA v. KIBLER ET AL.

No. 9526.

Supreme Court of South Carolina

October 3, 1916

Appeal from Common Pleas Circuit Court of Richland County; T. J Mauldin, Judge.

Action by the Guaranty Trust Company of South Carolina against R. Y Kibler and others. Judgment for plaintiff, and defendant Pearle Kibler appeals. Affirmed.

The following is the complaint:

The plaintiff above named, complaining of the defendants herein alleges:

For a first cause of action:

(1) That the plaintiff is now, and was at the times hereinafter mentioned, a corporation duly chartered and organized under the laws of the state of South Carolina, and doing business in the city of Columbia in said state.

(2) That the defendants, R. Y. Kibler, Pearle Kibler, and F. C Bigby, are now, and were at the times hereinafter mentioned residents of the county of Richland, state of South Carolina.

(3) That on the 18th day of August, 1915, the defendant R. Y. Kibler, made his promissory note in writing, whereby he agreed to pay to the order of the plaintiff $1,550 on November 5, 1915, for value received in form as follows:

"$1,550.00 Columbia, S. C., August 18, 1915.

"On November 5 days after date I promise to pay to the order of Guaranty Trust Co. of S. C., fifteen hundred & fifty and 00-100 dollars, value received.

Payable at office of Guaranty Trust Company of South Carolina. To be discounted at the rate of eight per cent. per annum, and if not paid at maturity to bear interest thereafter at the rate of eight per cent. per annum, and agree to pay all costs of collection including 10 per cent. attorney's fees, if not paid when due.

R. Y. Kibler."

(4) That the defendant Pearle Kibler and F. C. Bigby thereafter and before maturity indorsed the said note and delivered it so indorsed to the plaintiff for value.

(5) That at maturity of said note it was duly presented for payment, but was not paid, of all which notice was given to the defendants, and that the cost of protesting, including the United States internal revenue stamp, was 75 cents.

(6) That no part of the said note has been paid, and there is now due thereon the sum of $1,550.00 with interest from the 5th day of November, 1915, at the rate of 8 per centum per annum, and 10 per centum thereon as attorney's fee, as provided for in said note and cost of protest aforesaid.

For a second cause of action:

(1) That the plaintiff is now, and was at the times hereinafter mentioned, a corporation duly chartered and organized under the laws of the state of South Carolina, and doing business in the city of Columbia, in said state.

(2) That the defendants, R. Y. Kibler, Pearle Kibler, and F. C. Bigby, are now, and were at the times hereinafter mentioned, residents of the county of Richland, state of South Carolina.

(3) That on the 2d day of October, 1915, the defendant R. Y. Kibler made his promissory note in writing whereby he agreed to pay to the order of the plaintiff $3,800, 60 days after date, for value received, in form as follows:

"$3,800 Columbia, S. C., October 2, 1915.

"Sixty days after date I promise to pay to the order of Guaranty Trust Co. of S. C., thirty-eight hundred dollars, value received,

Payable at office of Guaranty Trust Company of South Carolina, in Columbia, S.C. To be discounted at the rate of eight per cent. per annum, and if not paid at maturity to bear interest thereafter at the rate of eight per cent. per annum, and agree to pay all costs of collection including 10 per cent. attorney's fees, if not paid when due.

R. Y. Kibler."

(4) That the defendants Pearle Kibler and F. C. Bigby thereafter, and before maturity, indorsed the said note, and delivered it, so indorsed, to the plaintiff for value.

(5) That at maturity of said note it was duly presented for payment, but was not paid, of all which notice was given to the defendants, and that the cost of protesting, including the United States internal revenue stamp, was 75 cents.

(6) That no part of said note has been paid, and there is now due and owing thereon the sum of $3,800, with interest from the 1st day of December, 1915, at the rate of 8 per centum per annum, and 10 per centum upon the amount due as attorney's fee as provided for in said note, and cost of protest aforesaid.

Wherefore plaintiff demands judgment against the defendants for the sum of $5,350, with interest on $1,550 from November 5, 1915, at the rate of 8 per centum per annum, and with interest on $3,800, from December 1, 1915, at the rate of 8 per centum per annum, and 10 per centum upon the aggregate amount found to be due for attorney's fee, and for $1.50 cost of protest, and for the costs of this action.

The defendant Pearle Kibler served the following answer:

The defendant, Pearle Kibler, answering the complaint herein, says:

(1) That she has not sufficient information and knowledge to form a belief as to the truth of allegations 1, 3, 5, and 6 in the first and second causes of action in said complaint, and therefore denies the same and demands strict proof.

(2) Admits allegations No. 2, in the first and second causes of action of said complaint.

(3) That she has not sufficient information and knowledge to form a belief as to the truth of that part of allegations No. 4 in the first and second causes of action, which allege that she indorsed the specific notes described in the complaint, and therefore denies the same, and further denies that she has ever delivered any notes indorsed by her to the plaintiff or received any consideration or value whatsoever from the plaintiff for any indorsement on notes made by the defendant R. Y. Kibler.

(4) Further answering the said complaint, this defendant alleges That in the spring of 1914 the defendant R. Y. Kibler explained to her that the collateral notes secured by certain mortgages which had been running for a...