Maynard v. Bank of Kershaw
| Decision Date | 21 July 1938 |
| Docket Number | 14728. |
| Parties | MAYNARD v. BANK OF KERSHAW et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Kershaw County; G. Duncan Bellinger, Judge.
Action at law by Eva L. Maynard against the Bank of Kershaw, as principal, and T. B. Clyburn and Fred E Culvern, as sureties, for the breach of a claim and delivery bond. From a judgment in favor of the plaintiff, the defendants appeal.
In action by landlord, who had rent lien on tenant's mortgage chattels, against a chattel mortgagee and mortgagee's sureties for breach of a claim and delivery bond, evidence authorized finding that the property was of the value of at least $2,500, as claimed by landlord.
The report of the master, requested to be published, follows:
W. L DePass, Jr., Master in Equity for the County of Kershaw respectfully reports as follows to the Honorable, the Court of Common Pleas for Kershaw County:
The above entitled action was brought in Kershaw County, the Summons and Complaint being duly served on September 11 1932. The defendants demurred to the complaint, and his Honor Judge Townsend, Presiding Judge of the 4th Circuit overruled the demurrer. The defendant Bank of Kershaw answered over and the individual defendants, T. B. Clyburn and Fred E. Culvern filed separate answers. The plaintiff demurred to the answer of the Bank of Kershaw, and his Honor Judge Townsend overruled the demurrer. The plaintiff then moved to strike out certain paragraphs of the Bank's answer, and this motion was duly granted by Judge Townsend.
By motion of counsel for plaintiff, and with the consent of counsel for the defendants, his Honor Judge Townsend at his Chambers in Camden, on June ---, 1933, referred the above action to me as Master for Kershaw County to report to the Court all issues of law and fact.
The above entitled cause is an action at law brought by Eva L. Maynard against the Bank of Kershaw, as Principal, and T. B. Clyburn and Fred E. Culvern, as sureties, for the breach of a claim and delivery bond, in the penal sum of $7000, and in the statutory form, being conditioned to prosecute or to return if the return of the property be adjudged. The breach assigned is the failure to prosecute the claim and delivery action.
The plaintiff alleges that in the capacity of landlord she distrained for rent the furniture, fixtures and stock of parts and used cars of her tenant T. L. Ingram, doing business in Cheraw under the name of Ingram Motor Company. The plaintiff avers that she distrained for eleven (11) months unpaid rent in the amount of $1100, and that while the personal property distrained was in the hands of her agent, C. W. Sims, that it was seized in claim and delivery proceedings brought by the Bank of Kershaw claiming the property as mortgagee, the bond here in action being given by the claim and delivery plaintiff.
The complaint further alleges that the claim and delivery plaintiff failed to prosecute the action commenced by it but rather appeared before his Honor Judge Dennis, by Attorney, and asked and was granted a discontinuance of its action over the formal objection of this plaintiff. The plaintiff herein asks judgment for the breach of the bond in the sum of eleven hundred dollars ($1100), and after notice duly given the adverse parties, the plaintiff has asked leave to amend the prayer of the complaint so as to ask for $1100 and interest at seven (7) per cent from the date of the taking of the property.
The answer of the Bank of Kershaw admits the formal allegations of the complaint, admits the plaintiff's distress levy and advertisement of sale, and admits that it brought claim and delivery proceedings claiming the property by reason of a chattel mortgage then in default. The defendant then set up several special matters by way of defense, but these were stricken by his Honor Judge Townsend, leaving the answer a general denial except as qualified by the admissions recited above. The answer of T. B. Clyburn and Fred E. Culvern is a general denial except in so far as they admit the execution of the bond in action.
Reference was held by me on December 13, 1933, in the above case for the purpose of taking testimony and hearing argument, which reference was adjourned divers times and finally concluded on March 26, 1936.
Now, therefore, I beg to report to the Honorable Court as follows:
The facts of this case are virtually undisputed, and with one exception such little disagreement as there is between the parties seems to be inconsequential in view of the rules of law which I deem applicable.
In 1928, T. L. Ingram, doing business as Ingram Motor Company, went into the building of Mrs. Maynard, located in Cheraw, as tenant under an agreement to payment of $150 per month.
On March 25, 1930, the Bank of Kershaw loaned Mr. Ingram $8350 and took as security a chattel mortgage on his furniture, fixtures and stock in trade then located in Mrs. Maynard's building. This mortgage was duly recorded in the office of the Clerk of Court for Chesterfield County on March 31, 1930.
In March, 1930, a conversation took place between Mr. Ingram and Mr. J. W. Maynard as agent for his wife, the import of which is in dispute. Maynard testified that because of the depression he agreed to collect only $100 rent per month and to make no call for the balance unless business conditions improved. Mr. Ingram says that he had made arrangements to rent other premises in Cheraw and that Mr. Maynard agreed for his wife to reduce the rent to $100, and that it was because of this new agreement that he remained as Mrs. Maynard's tenant.
On August 1, 1931, Mrs. Maynard levied distress proceedings on the property of her tenant to recover $1100 past due rent, the same being eleven (11) months rent. This property was appraised as provided by law, and advertised for sale. Before it was sold it was taken by the Bank of Kershaw in claim and delivery proceedings, the bank claiming by virtue of the chattel mortgage recited above which was then in default. The appraisers valued the property at approximately $5500. In its claim and delivery proceedings the Bank of Kershaw, by affidavit, valued the property at $3500.
Pending action in the claim and delivery proceedings, the county authorities levied on the personal property in litigation and it was sold at public auction to satisfy $1176.54 in unpaid taxes due by T. L. Ingram. At this tax sale this personal property was bid in by Mr. John T. Stevens, president of the Bank of Kershaw for $1176.54, and the property was subsequently removed from Cheraw to Kershaw. Part of it was subsequently sold, but defendants testify that the bulk of it is still warehoused there.
The question of the value of the property distrained and subsequently taken in claim and delivery is the only vital question of fact in dispute. The plaintiff contends that it was worth at least $2276.54 (i. e. $1100 more than the $1176.54 tax lien) at the time it was taken from the plaintiff by claim and delivery. The defendants contend that it was worth no more than $1176.54, as evidenced by the price brought at the tax sale. The determination of this issue presents mixed questions of law and fact.
As stated above, the property in dispute was the furniture, fixtures and ordinary stock in trade of the Ingram Motor Company. The Ingram Motor Company sold Fords, and the stock consisted largely of parts for Model T and Model A cars and for Fordson tractors. As evidence tending to prove a value of at least the $2276.54 claimed by the plaintiff, I call attention to the fact that Mr. Stevens testifies by affidavit that his Bank, this defendant, loaned $8350 upon the security of the Ingram Motor Company's furniture, fixtures and stock. There is no testimony tending to show any decease in the value of this property between the date of the loan and the distress proceedings; in fact, Mr. Ingram testifying as witness for defendants, stated that his stock remained about the same between these two dates.
It is further to be noted that Mr. M. C. Thomas of Cheraw, S. C., an Automobile mechanic, testified that he helped to appraise the property in the distress proceeding, and that after deducting the dealer's amount of discount of 40 per cent from the list price, they then deducted 15 per cent from the remainder, and that he and his associates valued this property at $5500. The defendants have objected to this testimony on the grounds that they were not parties to the appraisal proceedings, but Mr. Thomas has stated how he and the other appraisers valued this property, and while this testimony is not binding on the defendants, I hold that it is competent evidence as going to prove the value of this property at almost the exact time it was seized in claim and delivery.
The plaintiff has especially called to my attention the fact that the Bank of Kershaw, a present defendant, by its affidavit in its claim and delivery action has admitted that this property was worth $3500 as of the time it was taken. The plaintiff finds in this affidavit the elements of an estoppel to prevent the defendant now seeking to prove the property to have been of less value. In support of this argument my attention has been directed to the following citations:
Kaufman v. Seaboard Air-Line Ry., 10 Ga.App. 248, 73 S.E. 592. Kaufman brought bail trover against the railroads, gave bond and took the goods. Kaufman was nonsuited by the Court and the Court allowed the defendant to take judgment against Kaufman on his bond for $800, the amount stated in plaintiff's petition and affidavit for bail as the value of the goods. On page 593, 10 Ga.App. on page 250, the Court says: "The defendant in any of these events [if plaintiff's action is...
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