McCandless v. Mobley

• Decision Date: 11 September 1908
• Citation: 62 S.E. 260,81 S.C. 303
• Parties: McCANDLESS v. MOBLEY et al.
• Court: South Carolina Supreme Court

62 S.E. 260

81 S.C. 303

McCANDLESS v. MOBLEY et al.

Supreme Court of South Carolina

September 11, 1908

Appeal from Common Pleas Circuit Court of Chester County; Chas. G Dantzler, Judge.

Action by John McCandless, executor of Hamilton McCandless, against D. M. Mobley and another on two notes. From a judgment for plaintiff on one note only, he appeals. Reversed and remanded for a new trial.

Henry & McLure, for appellant.

J. H Marion, for respondents.

WOODS J.

This action was brought on two promissory notes given by the defendants to Hamilton McCandless plaintiff's testator, one dated January 22, 1900, due December 1, 1900, for $250 and interest from date at the rate of 7 per cent., payable annually until paid in full, and the other dated February 18, 1902, due two years after date for $176, with like provision for interest. On the first note the complaint alleged the only payment was $100 on October 26, 1900. There was no dispute as to the payments on the second note.

The defendants alleged in their answer that Hamilton McCandless, the payee of the notes, had remitted the interest on the first note, and that the second note was a renewal of the first, together with an additional loan of $25, and $1 paid to Mr. McLure for writing the note; the amount being made up in this way:

First note ................... $250

Credit ........................ 100

----

150

Additional loan ................ 25

Paid Atty. for drawing note ..... 1

----

$176

A motion was made to strike out certain portions of the answer as frivolous, irrelevant, and redundant. We think the words "solemnly swears" might well have been stricken out as redundant, for pleading should present the issues in a plain way, and every verified complaint is presumed to be solemnly sworn to. The other allegations referred to in the motion also might have been stricken out with propriety as incumbering the answer with evidentiary matter. But there was no reversible error in refusing the motion, for an order refusing such a motion is not appealable. Herbert v. A C. L. R. R. Co., 74 S.C. 13, 53 S.E. 1001. The plaintiff asked the court to direct a verdict for the full amount claimed as due on the two notes, on the ground that there was no evidence to establish the defense that the whole debt was represented by the second note. This motion was refused. The jury found a verdict for $136.69, the amount claimed as due on the second note only; thus sustaining the contention of defendants. A motion for a new trial was refused.

The next exception relates to the admission of testimony. D. M Mobley was allowed to testify as follows concerning his transaction with Hamilton McCandless, the deceased payee of the notes, when the second note was given: "Q. I say, Mr. Mobley, you admit getting some money on that...