Midland Timber Co. v. Furman

• Decision Date: 06 January 1919
• Docket Number: 10106.
• Citation: 97 S.E. 831,111 S.C. 287
• Parties: MIDLAND TIMBER CO. v. FURMAN ET AL.
• Court: South Carolina Supreme Court

97 S.E. 831

111 S.C. 287

MIDLAND TIMBER CO. v. FURMAN ET AL.

No. 10106.

Supreme Court of South Carolina

January 6, 1919

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

Action by the Midland Timber Company against Bolivar B. Furman and others. Decree for plaintiff, and defendants appeal. Affirmed.

McMillan & Heyward and Ficken & Erckmann, all of Charleston, for appellants.

Smythe & Visanska, of Charleston, for respondent.

GAGE J.

Action to foreclose mortgage on land. The debt is admitted to be due. The only defense to the action is usury, and that is the sole matter at issue. The master and the circuit court both found against the plea, and rightly so.

The issue of usury hinges on the competency of the parol testimony of a witness for the plaintiff named Montagu. The circuit court held it to be competent; and if that be so, and if the testimony be true, then there was no usury in the transaction. In those instances where the writing is plain and where the parol testimony manifestly disputes or adds to the recitals of the instrument, such testimony is of course incompetent. The rule of law is axiomatic.

The only difficulty, here and in most controversies, lies in the application of the rule to the circumstances of the case. On the issue of fact the master and circuit court have found that Montagu spoke the truth, and the appellant has not satisfied us of the contrary. On the issue of law the testimony of Montagu was plainly competent.

To use a simile, if a span of a bridge be missing, that circumstance is manifest on casual observation, and the conclusion is instant that the whole structure is not present. So here, if the paper writings laid down show upon their face an incompleteness, then that which makes them complete may be shown by parol. The rule of the books in such a case is well stated in Jones on Evidence, § 440 et seq., where the author makes apt and full quotations from the Minnesota leading case of Thompson v. Libby.

In the instant case the writings, now to be laid down, which evidence the whole transaction, are fragmentary; they were executed in different times, between different parties, and are of different characters. These are the circumstances:

The Furmans were landowners. They had transactions with three lumber corporations. In March, 1902, they made with the Atlantic Coast Lumber Company a contract to cut timber on several parcels of land, and that Lumber Company asserted that, by what is called a blanket clause, the Du Pre tract was embraced in that contract. The relevancy of that contention will appear.

In March, 1910, the Furmans were in debt and hard pressed for money, and they made application to the Midland Timber Company for a loan. A preliminary contract was then entered into between these parties, and therein two things were agreed upon: (1) That the Midland Company should lend the Furmans $17,000, at the interest rate of 8 per cent., and take as security therefor a mortgage on sundry parcels of land, one of which was specially the Du Pre tract; (2) that at the time the note and mortgage to evidence the loan should be executed by the Furmans, they should then make with the Midland Company an agreement--

"by which the company shall be allowed a period of 20 years from the date of said agreement * * * within which to cut and move the timber growing upon the said property."

In April, 1910, thereafter the Furmans made the "memorandum agreement" with the Midland Timber Company which the preliminary contract had anticipated. Therein the contract of ...