Mills v. Williams

• Decision Date: 15 March 1882
• Docket Number: CASE No. 1173.
• Parties: MILLS v. WILLIAMS.
• Court: South Carolina Supreme Court

16 S.C. 593

MILLS

v.WILLIAMS.

CASE No. 1173.

Supreme Court of South Carolina.

Mar. 15th, 1882.

1. A party seeking to impeach a contract because it was made on Sunday must show that it was done by a person in the exercise of the business of his ordinary calling. Hellams v. Abercrombie, 15 S. C. 110, approved.

2. A horse was sold at public auction under a mortgage, and purchased by a disinterested third person, and he, failing to comply, transferred his bid to the mortgagee, who took possession. There being no evidence to show fraud in the sale, or that the price paid was, at the time, inadequate, or that the mortgagee had resold at a profit, held, that the sale was valid.

3. A principal executed a sealed note, with her husband and two others as sureties, for a sum certain, expressed to be for “value received in mule,” with the name of the payee left blank, and delivered it to her husband, as her agent, to purchase a mule from a certain drover whose name was forgotten. The husband used the note in the purchase of a horse of greater value from another person, giving his own obligation for the difference. Held, that as to the other parties to the note there was no delivery, and the husband was alone liable to the holder, even if no notice, other than that expressed in the note, was brought home to the holder that the note was intended for another person. Gourdin v. Read, 8 Rich. 230, recognized and followed.

4. Knowledge by the principal and her other sureties that this horse had been purchased was no ratification of the delivery of the note, whether they knew of the use of the note for such purpose or not. Nor did the deposit by the principal of a sum of money with her sureties to save them harmless in this suit, nor a remark made by one of such sureties after action commenced, that the note would have been paid if not sued, amount to a ratification of the misappropriation of the note.

Before KERSHAW, J., Spartanburg, October, 1880.

The opinion states the case.

Mr. J. S. R. Thomson, for appellants.

Messrs. Bobo & Carlisle, contra.

The opinion of the court was delivered by

MCIVER, A. J.

This was an action on a note under seal, of which the following is a copy:

“By the first of November next, we or either of us, promise to pay , or bearer, the sum of eighty-five dollars, value received in mule, this March 30th, 1879.

Witness our hands and seals, with interest from date.

(Signed.)

“DIANA WILLIAMS, [L. S.]

“A. J. WILLIAMS, [L. S.]

“W. D. O'SHIELDS, [L. S.]

“R. M. SMITH.” [L. S.]

The circumstances attending the signing of this note were as follows: Mrs. Diana Williams had contracted for the purchase of a mule from a certain drover, whose name she could not recall, and had agreed to give a note, with sureties, for the same. Accordingly, the above-mentioned note was signed by her as principal, with the other defendants as sureties, she, at the time, agreeing to secure her sureties from ultimate loss by a mortgage on the mule. Not remembering the name of the drover with whom the contract had been made, there was a blank left in the note for the name of the payee, and the note was delivered to the defendant, A. J. Williams, the husband of Diana, for the purpose of being delivered to the drover and obtaining from him the mule.

A. J. Williams, however, in violation of the trust thus reposed in him, did not deliver the note to the drover, and did not obtain said mule, but, on the contrary, without any authority from the other signers of the note, delivered said note to the plaintiff, in part of the purchase-money of a horse, and gave a mortgage on the horse to secure an alleged balance of forty dollars. The defendants knew shortly afterwards that A. J. Williams had bought a horse from the plaintiff, but whether they knew that the aforesaid note had been used in settlement for the horse, did not appear.

It also appeared that when the note for forty dollars became payable, the plaintiff seized the horse under his mortgage, and sold him at public auction for fifty-five dollars, at which sale the defendant R. M. Smith was present. The purchaser at this sale having failed to comply with his bid, “sold said horse to L. A. Mills at same price, and Mills still owns the horse,” (as is stated in the “case,”) and the evidence was that the horse, at the time of the trial, was estimated to be worth from one hundred to one hundred and twenty-five dollars.

The plaintiff testified that when he sold the horse to A. J. Williams he had no notice of the arrangement between the defendants in regard to the purchase of the mule from the drover, and also, that the defendant Smith told him that they had the money to pay off the note, and would have done so if plaintiff had not brought suit. This money, it seems, had been placed in the hands of her sureties by Diana Williams to indemnify them in the suit, and was her own money.

The defendants requested the Circuit judge to charge as follows: “ First, if, from the testimony, the jury believe that the defendants, Diana Williams, W. D. O'Shields and R. M. Smith, signed and sealed said note given to be filled out in favor of a certain person not a party to this proceeding, for a certain mule, and never gave consent that the same should be delivered to L. A. Mills or should be used in the purchase of a horse, then the verdict must be in favor of the defendants named. Second, if the jury believe that the contract in this case was executed on Sunday, they must find a verdict for all of the defendants.”

Both of these requests were refused, and the judge charged “that in order for Diana Williams, W. D. O'Shields and R. M. Smith to avoid the note, it was necessary for them to bring home notice to the plaintiff that the note was intended for another person, and that A. J. Williams was not authorized to deliver it to plaintiff. That a sealed note executed under the circumstances under which this was given could have been delivered to any person for any work animal, (though not, perhaps, for an entirely different species of property,) and that such transferee of note could recover thereon from all the signers thereof. That the circumstances under which the note was executed, and the fact that A. J. Williams delivered it for different property and to a different person than intended by the other signers, in no way relieved the defendants, or either of them, from their liability on said note. That the value of the horse at the time of mortgage sale by plaintiff must first go in payment of the mortgage note for forty dollars and interest, given by A. J. Williams to L. A. Mills, and the balance, if any, was applicable as a credit on said note sued on in this action. That the jury will not be authorized to presume from the date of the note that plaintiff sold the horse on Sunday. The presumption would be that he did not, as no person is presumed to do wrong. That the only direct testimony on this point was that of W. D. O'Shields, to the effect that he saw the horse on Tuesday, after Williams had purchased him from plaintiff on Saturday.”

Judgment having been rendered for plaintiff, the defendants appeal, and we are called upon to determine whether there was any error on the part of the Circuit judge in refusing to charge as requested, or in any of the propositions of law laid down in the charge, to all of which exceptions were duly taken.

The appeal of the defendant, A. J. Williams, stands upon an entirely different footing from that of the other defendants, and we propose to consider his appeal first. He raises only two questions: First, whether the judge erred in refusing to charge that if the jury believed from the testimony that the contract, evidenced by the note, was made on Sunday, the plaintiff could not recover. This court has recently decided, in the case of Hellams v. Abercrombie, 15 S. C. 110, that the mere fact that a contract was made on Sunday will not render it invalid, but that the party seeking to impeach it must go further and show that the contract was made by a person in the exercise of the business of his ordinary calling. Hence, in that case, a mortgage on real estate, executed on Sunday, which was given to indemnify a surety, was held valid. In this case there is no evidence tending to show that either of the parties in making this contract were in the exercise of the business of their ordinary calling, and, therefore, even if the contract had been made on Sunday, it would be a valid one. There was no error in this respect.

The next ground relied upon by A. J. Williams is, that the judge erred in instructing the jury that the value of the horse, at the time it was sold under the mortgage, must be first applied to the payment of the note for forty dollars, and only the balance, if any, was applicable to...