McElwee v. Hutchinson

• Court: South Carolina Supreme Court
• Writing for the Court: MCIVER, A. J.
• Citation: McElwee v. Hutchinson, 10 S. C. 436 (S.C. 1879)
• Decision Date: 18 January 1879
• Parties: MCELWEE v. HUTCHINSON.

10 S.C. 436

MCELWEE v. HUTCHINSON.

Supreme Court of South Carolina.

January 18, 1879

Though as a general rule, where plaintiff sues upon a note, the defendant cannot give payment in evidence without pleading the same, yet where complaint alleges certain credits, and that there is a specified balance due for which judgment is claimed, defendant can give other payments in evidence under a general denial of the allegations of the complaint.

Part payment of the amount due on a sealed note made in compromise of an action on the note held to be supported by sufficient consideration and to have discharged the balance due.

BEFORE ALDRICH, J., AT YORK, SEPTEMBER TERM, 1878.

Action by J. N. McElwee against A. E. Hutchinson.

The action was commenced in January, 1878, and the allegations of the complaint were as follows:

" 1. That on the 4th of March, 1861, John L. Miller, L H. Massey and the defendant made their joint and several sealed note to plaintiff in the sum of five hundred dollars payable twelve months after date, and bearing interest from date.

2. That said sealed note is entitled to the following credits, to wit: On the 1st of February, 1869, the sum of three hundred and seventy-seven 80-100 dollars paid by the defendant, A. E Hutchison; on the 12th of November, 1871, the sum of forty-one 23-100 dollars; on the 9th of February, 1876, the sum of six 65-100 dollars; and on the 10th of April, 1877, the sum of forty-one 93-100 dollars-the last three payments having been made by the assignee of the bankrupt estate of the said L. H. Massey.

3. That there is still due and owing to plaintiff by defendant the sum of four hundred and fifteen 90-100 dollars, with interest from 1st of February, 1869, less the aggregate of all the credits except the first set out in paragraph 2, to wit, eighty-nine 81-100 dollars, to be taken from the debt on the day of the rendition of judgment.

Wherefore plaintiff demands judgment against the defendant for said sum of four hundred and fifteen 90-100 dollars, with interest thereon from the 1st of February, 1869, less the credit of eighty-nine 81-100 dollars, as aforesaid, and for costs."

The answer contained nothing more than a general denial of each and every allegation of the complaint.

The plaintiff gave evidence tending to show the existence and contents of the note, and the credits thereon, as alleged in the complaint; that in 1866 the note was given to an attorney for collection, and that it was lost or mislaid.

The defendant gave evidence tending to show that Mr. Bell, the attorney of plaintiff, in whose hands the note sued on was placed for collection in 1866, had compromised the suit with the defendant in 1869 by taking from him one-half the amount then due, and a receipt by the attorney to the defendant, dated February 1st, 1869, was produced, which stated that he (the attorney) had received from the defendant $398.37, by way of compromise, at fifty per cent. on the dollar, in full of debt, interest and costs. The plaintiff and the attorney who made the compromise both testified that the compromise was made without the authority of plaintiff; that he had declined to ratify it, and had refused to receive the fifty per cent. paid as in full.

His Honor charged the jury that while an attorney could not compromise a claim without his client's authority, they might consider the question whether, by so long a delay before bringing the action, McElwee had not ratified his attorney's acts, if, in fact, he had given no authority in the first instance.

Before the jury retired, and at the request of plaintiff's counsel, His Honor also charged that the payment of the fifty per cent. to Mr. Bell on the note in suit, the defendant having been solvent, (though the receipt expressed that it was to be in full,) is not a satisfaction or discharge of the balance, unless there is a release under seal.

The jury found for the defendant, and the plaintiff appealed on the following grounds:

1. Because, it is respectfully submitted, His Honor erred in holding that testimony going to prove a compromise was admissible under defendant's answer denying each allegation of the complaint simply.

2. Because the verdict was contrary to the evidence adduced at the trial.

3. Because the verdict was against the weight of the evidence.

4. Because the verdict was contrary to the law of the case as charged by His Honor at plaintiff's request.

Witherspoon & Spencer , for appellant.

Hart & Hart, Witherspoon , contra.

OPINION

MCIVER A. J.

There can be no doubt but that, as a general rule, the defense of payment to an action on a note cannot be given in evidence under a general denial. This rule, however, only applies where the complaint is in the usual form, stating only such facts as are necessary to constitute a cause of action. If however, other facts are stated, a denial of which raises an issue as to...