Parker v. Mayes

• Decision Date: 01 April 1910
• Citation: 67 S.E. 559,85 S.C. 419
• Parties: PARKER v. MAYES et al.
• Court: South Carolina Supreme Court

67 S.E. 559

85 S.C. 419

PARKER v. MAYES et al.

Supreme Court of South Carolina

April 1, 1910

Appeal from Common Pleas Circuit Court, Saluda County; C. G Dantzler, Judge.

Suit by J. S. Parker, as trustee in bankruptcy for the creditors of S. M. French, bankrupt, against W. M. Mayes and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Eugene W. Able, for appellants. Lyles & McMahan, for respondent.

JONES C.J.

This is a suit upon a promissory note dated February 29, 1904, signed by the defendants, who jointly and severally promised to pay to the order of S.C. Cook $1,200 sixty days after date. Cook indorsed and delivered the note to S. M. French before maturity, but, as matter of fact, the note was taken for property belonging to French and sold by Cook as his agent and French was real owner of the note when it was executed. French became bankrupt, and plaintiff became owner and possessor of the note as trustee in bankruptcy. The defendant Anderson was not served, and judgment was not demanded against him. Upon the trial Judge Dantzler directed a verdict against defendant Mayes for $847.38.

Upon a previous motion Judge Shipp made order striking out from defendant's answer after the word "herein" on second line down to and including "payment" on last line of the following which constitutes the second defense "[1] That he admits that he signed the note, as set out in the complaint herein, (but alleges that it was understood and agreed by all parties at the time that he signed it that he was liable for one-half thereof only, and that this defendant is informed and believes and alleges that S. M French, the party to whom the note was transferred by S.C Cook, was advised of and fully knew all these facts when he acquired the aforesaid note. [2] That, when the said S. M. French caused the said note to be presented to this defendant for payment, this defendant denied liability for any amount of the said note save and except one-half thereof, and advised the aforesaid S. M. French that he would resist payment, if necessary, by litigation, whereupon said French agreed with this defendant that, if he would pay the one-half thereof, said amount would be accepted in full of all this defendant's liability thereon, and he would be released from all further liability thereon; whereupon, and in consideration of this agreement and understanding between this defendant and the said S. M. French, this defendant paid to the order of the said S. M. French the one-half of the said note. That the said amount was accepted with this understanding and with a memorandum of the same made on the check that this defendant gave in payment.)" In appealing from the judgment on verdict appellant assigns error to the order of Judge Shipp.

Even if we should waive the point that appellant should have appealed from the order of Judge Shipp, there was no error. The allegation as to the contemporaneous agreement was in conflict with the well-established and salutary rule...