Mcclendon v. Wells

• Citation: 20 S.C. 514
• Parties: MCCLENDON v. WELLS.
• Decision Date: 10 March 1883
• Court: South Carolina Supreme Court

20 S.C. 514

MCCLENDON

v.WELLS.

Supreme Court of South Carolina.

Mar. 10th, 1883.

1. In an action ex contractu on an attachment bond, the Circuit judge erred in charging the jury that if defendant was actuated by malice in obtaining the attachment with a view to injuring this plaintiff, they could give punitive damages.

2. And he further erred in instructing the jury that the plaintiff could in such action recover damages for a trespass in seizing and selling the property under a chattel mortgage, which defendant had purchased and thereunder seized the property attached at the instant of the dissolution of the attachment-no such cause of action being stated in the complaint.

3. Moreover, being mortgagee after condition broken, defendant committed no trespass in seizing the chattels, and the only remedy of the mortgagor was an action before sale to redeem, or after sale for accounting, and in either case the mortgagor would be required to pay the mortgage debt, and also all other indebtedness to the mortgagee. Reesev.Lyon, 20 S.C. 17, approved.

4. Tender by the mortgagor after condition broken and seizure would not revest title in the mortgagor; besides, a tender of the debt, but not of interest and expenses, was insufficient.

5. The mortgagee had the right, after condition broken, to take peaceable possession of the chattels, wherever found, or, having them then in his possession, to retain them.

6. A general denial in a reply does not permit plaintiff to prove an affirmative defense to the counter-claim. The case being remanded, permission was given to plaintiff by this court to amend his reply.

7. Admissions made by the mortgagees, of the amount due on the mortgage, prior to their assignment of it, are admissible in evidence against their assignee.

Before HUDSON, J., Laurens, September, 1883.

The exceptions and the opinion of this court constitute a full statement of the case. The former were as follows:

1. Because his Honor erred, it is respectfully submitted, in charging the jury that the defendant was bound to return the property taken under the attachment when said attachment was released, although the defendant, at the time of said release, was the owner of a chattel mortgage of said property with condition broken.

2. Because his Honor erred in charging the jury that the plaintiff could recover the value of the property taken under the attachment, when the property was not sold under the attachment but was sold by the defendant after the release of the attachment by virtue of a power vested before the said release, in him as assignee of a chattel mortgage with condition broken.

3. Because his Honor erred in charging the jury that the plaintiff could recover damages for the loss of the property resulting from a cause other than the attachment, when the allegations of the complaint did not extend to any source of injury outside of the attachment.

4. Because his Honor erred in charging the jury that the plaintiff could recover in this action the proceeds of the sale of the property sold by the defendant under a chattel mortgage with condition broken, on the ground that the plaintiff did not owe the full amount of the debt secured by said mortgage, when it appears that the plaintiff executed the said bond and mortgage to Moore, Quarles & Co., for a greater amount than was actually due for the purpose of defrauding his creditors.

5. Because his Honor erred in admitting as evidence a paper purporting to be a statement made by Moore, Quarles & Co. on the mortgage, when the statement did not refer to this particular mortgage, and when the defendant, the assignee, did not have the opportunity to cross-examine the maker of the statement, and when Quarles, one of the assignors of said bond and mortgage, was dead.

6. Because his Honor erred in charging the jury that the plaintiff could recover on the bond, when the execution and delivery of the bond upon which the action was brought was not proved by any evidence whatsoever.

7. Because his Honor erred in charging the jury that the amount due on the mortgage was already paid.

8. Because his Honor erred in charging the jury that the takingand disposing of any property over the amount due on the mortgage, to wit, $85.65, was a trespass, and the defendant was liable in this action for said trespass, when the defendant was not sued as trustee for the surplus.

9. Because his Honor erred in charging the jury that the amount of $85.65 was a good tender when the bond was overdue and the property had been taken under a mortgage to secure the same, when no cost nor interest was tendered.

10. Because his Honor erred in refusing to charge the jury as requested by defendant's counsel, that the plaintiff coming into a court of justice must show that his title to equity is unmixed with any gross misconduct or negligence of himself or his agents.

11. Because his Honor erred in charging the jury that they could give punitive damages if there was any malice on the part of the plaintiff in attachment.

12. Because his Honor erred in allowing the plaintiff to show partial want of consideration of the said bond and mortgage, when the reply sets up only a general denial.

Messrs. F. P. McGowan and W. H. Martin, for appellant.

Messrs. Ball & Watts, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

On December 3d, 1881, Wells, defendant herein, commenced an action against McClendon, the plaintiff herein, to recover the sum of $205.06, the value of certain goods advanced by one Pope to McClendon, at the request and upon the credit of Wells. At the time of commencing said action, Wells sued out a warrant of attachment, under which the sheriff's deputy, on December 6th, 1881, seized certain chattels, as the property of McClendon, viz., one road wagon, one bay mare, one black mule and about 150 bushels of cotton-seed, which were duly appraised at the sum of $273. On December 12th, 1881, the attorneys of McClendon made a motion before the clerk to dissolve the attachment for irregularity, which motion was refused, and no appeal was taken therefrom.

On December 15th, 1881, Wells took an assignment, in writing, from Moore, Quarles & Co., of a note and mortgage given by McClendon to said Moore, Quarles & Co. on November 19th, 1881. The note was for the sum of $500, and was due on the day of its date, and the mortgage given to secure the payment of said note covered all the property seized under the attachment, except the cotton-seed, as well as other property of McClendon. On December 17th, 1881, Wells had the sheriff to release the attachment and paid the costs on the same, and on the same day Wells appointed, in writing, the same deputy who had levied the attachment, his agent, to take possession of the property embraced in the mortgage and dispose of the same according to law. On the same day the deputy delivered the cotton-seed, which, as has been mentioned, was not embraced in the mortgage to McClendon, but retained the other property seized under the attachment, by virtue of his authority as agent of Wells, the assignee of the original mortgagees, Moore, Quarles & Co., and after duly advertising sold the same at public auction for $231, cash. Out of this sum the deputy paid the expenses of keeping the stock and of the sale, and the balance, to wit, the sum of $200.75, was credited on the mortgage. On March 1st, 1882, the action which had been commenced by Wells against McClendon to recover the amount of the account for $205.06, was discontinued on the payment of costs.

The action herein was commenced on September 11th, 1882, and was brought upon the undertaking, which was in the sum of $250, executed by Wells when he sued out the warrant of attachment hereinabove mentioned. The complaint, after setting out the commencement of the original action, the issuing of the warrant of attachment and the execution of said undertaking, alleged: “That the said writ of attachment was illegally issued and obtained; that the...