Loan & Exchange Bank v. Miller

• Decision Date: 19 April 1893
• Citation: 17 S.E. 592,39 S.C. 175
• Parties: LOAN & EXCH. BANK OF SOUTH CAROLINA v. MILLER et al.
• Court: South Carolina Supreme Court

17 S.E. 592

39 S.C. 175

LOAN & EXCH. BANK OF SOUTH CAROLINA v. MILLER et al.

Supreme Court of South Carolina

April 19, 1893

Appeal from common pleas circuit court of Richland county; James F Izlar, Judge.

Action by the Loan & Exchange Bank of South Carolina against Jasper Noah J., Charles W., and George Miller, partners doing business under the firm name of Miller Bros., to recover on notes and an open account, and to foreclose a lien on certain property. From a judgment for plaintiff, defendants appeal. Modified.

The following are defendants' grounds of appeal, referred to in the opinion:

"Please take notice that, in pursuance of the notice of intention to appeal heretofore served on you, the defendants, Miller Bros., made the following exceptions to the decree of the Hon. James F. Izlar, presiding judge, filed in the above-stated case, for the purpose of said appeal:

"First. Because the presiding judge erred in finding, as a matter of fact, in his decree, that the bonds and stocks mentioned in the sixth paragraph of the complaint were pledged by the defendants, Miller Bros., as collateral security for the indebtedness to the plaintiff bank, and as matter of law, in ordering and

adjudging that said bonds and stocks should be sold by the said plaintiff, after due advertisement of not less than fifteen days, at public auction for cash, and the proceeds arising therefrom be applied to the indebtedness found by the presiding judge in his decree to be due by the defendants, Miller Bros., to the said plaintiff, whereas he should have found, as a matter of fact, that on the ___ day of February, 1891, the defendants, Miller Bros., assigned and pledged to the plaintiff bank, to secure any indebtedness then due by the said defendants to the plaintiff bank, or thereafter to be contracted, the following railroad and township bonds, to wit: Six first mortgage bonds of the Newberry & Laurens Railroad Company, numbers 614, 615, 616, 617, 618, 623, of the par value of $1,000 each; five bonds of Newberry township, numbers 1, 2, 8, 10, and 14, of the par value of $100 each; three bonds of Fork township, numbers 24, 25, and 28, of the par value of $100 each; two bonds of Stoney Battery township, numbers 2 and 7, of the par value of $100 each; four bonds of Columbia township, numbers 14, 38, 39, and 64, of the par value of $500 each; one bond of Saluda township, number 20, of par value of $1,000.00,-- and that on the ___ day of March, 1891, the said defendants assigned and pledged to the plaintiff the following certificates of stock, to wit Certificates of stock of the Miller Batting & Manufacturing Company, numbers 15, 16, 17, and 18, for fifty shares each, and numbers 19, 20, and 22, for ten shares each; certificates of stock of the Columbia Heights Land & Investment Company, numbers 19 to 26, inclusive, for fifty shares each, and a certificate of stock of the Congaree Manufacturing Company, number 21, for twenty shares, --upon the understanding and agreement with the plaintiff that in consideration of the said assignments the plaintiff would extend to these defendants a sufficient and ample line of credit to carry on their business, but that, after acquiring said last named securities, the plaintiff, in violation of the understanding and agreement, failed and refused to extend the said line of credit, and now holds the said securities in violation of the rights of the said defendants, and whereas, as matter of law, the presiding judge should have decreed that the last-mentioned securities were not subject to sale, but should be returned to the defendants, Miller Bros.

"Second. Because the presiding judge erred in finding, as a matter of fact, that Miller Bros. have not applied to their indebtedness to the plaintiff bank the proceeds arising from the sale of cotton, as required by the terms of their chattel mortgage to the plaintiff bank, whereas he should have found, as a matter of fact, that the said defendants have paid over to the plaintiff every dollar received for the sales of cotton in bales, as required by the terms of said chattel mortgage, and that the said defendants, in all respects, complied with the terms of their said contract.

"Third. Because the presiding judge erred in his decree in sustaining the exception of the plaintiff to the master's report, wherein error was alleged in the master's refusal to allow the plaintiff interest at seven per cent. on all overdrafts after June 9, 1890, and the resulting error therefrom of three hundred and eleven and 25-100 dollars too little in the balance found due by the defendants to the plaintiff on the overdraft account, whereas he should have overruled said exception, and sustained the finding and ruling of the master thereupon.

"Fourth. Because the presiding judge erred in his decree in holding that the question of usury could not be raised and considered in this case unless the same was pleaded, whereas he should have allowed the defense of usury to be made by the defendants to any items or claims wherein the same appeared in the accounts of the plaintiffs against the said defendants, and, besides, under the answer of the defendants, these items should have been disallowed as illegal and unauthorized, and that the answer sufficiently put in issue any illegal charge.

"Fifth. Because the presiding judge erred, after holding that usury could not be set up in this case because the same was not pleaded, and although the master had found, as a matter of fact, that the usury had been charged, in not allowing or giving an opportunity to said defendants to amend their answer so as to plead usury, and in so doing he deprived the defendants of a substantial right, and of which they were not cognizant until said usurious charges were brought to light in accounting before the master.

"Sixth. Because the presiding judge erred in his decree in overruling the first exception of the defendants to the master's report, which said exception should have been sustained, which said exception was as follows: 'That the master erred in holding that the items claimed by the bank on the reconcilement sheet, under the head of "We Charge," were proved by competent and sufficient evidence; and in holding that the evidence of Mr. Walker, cashier, and Mr. Cronenberg, bookkeeper, was sufficient evidence to prove the said items without the introduction into evidence of the books of the bank.'

"Seventh. Because the presiding judge erred in overruling the second exception of the defendants to the master's report, and should have sustained the same, which said exception was as follows: 'That the master erred in not holding that the evidence of the said cashier and said bookkeeper amounted to a mere identification of the said items on the books of the said bank, from which the said cashier and the said bookkeeper read, and did not constitute proof of the said item.'

"Eighth. Because the presiding judge erred in his decree in overruling the third exception of the defendants to the master's report, instead of sustaining the same, which said exception was as follows: 'That the master erred in finding that interest on interest upon overdrafts was not charged by the said bank, and that the charges of interest upon overdrafts were not compounded monthly or at shorter periods, by the said bank.'

"Ninth. Because the presiding judge, in his decree, overruled the defendants' fourth exception to the master's report, when he should have sustained the same, which said exception was as follows: 'That the master erred in not holding that the said interest on overdrafts at the rate of eight and ten per cent. per annum and compounded monthly, as aforesaid, was usurious and void.'

"Tenth. Because the presiding judge erred, in his decree, in overruling, and not sustaining, the fifth exception of defendants to the master's report, which was as follows: 'That the master erred in finding that the balance claimed by the said bank in September, 1889, and in June, 1890, respectively, embraced the said charges of interest on overdraft.'

"Eleventh. Because the presiding judge erred in his decree in overruling, and not sustaining, the defendants' sixth exception to the master's report, which exception was as follows: 'That the master erred in finding that the defendants acknowledged and ratified, in writing, the alleged agreement to pay the rates of interest in excess of seven per centum per annum by the giving of promissory notes, notwithstanding the fact that the said notes alleged to have been given for the purpose of stating and settling the said account on the 9th of June, 1890, are not in evidence, and there is no evidence that the said notes bore upon their face an agreement to pay more than the legal rate of interest.'

"Twelfth. Because the presiding judge erred in his decree in overruling, and in not sustaining, the defendants' eighth exception to the master's report, which exception was as follows: 'That the master erred in finding that the amount of interest charged on overdraft by the plaintiff has not been received or paid as interest by the said plaintiff.'

"Thirteenth. Because the presiding judge erred in overruling, and not sustaining, the defendants' ninth exception to the master's report, which exception was as follows: 'That the master erred in his conclusion that, as matter of law, the defendants are not entitled to double the amount of excess of interest on overdrafts above the legal rate.'

"Fourteenth. Because the presiding judge erred in overruling, and not sustaining, the defendants' tenth exception to the master's report, which exception was as follows 'That the master erred in holding that the charges of interest on overdrafts which appear on Exhibit Q, and embraced in the first charge, under the...