Pelzer v. Durham

• Decision Date: 08 October 1892
• Citation: 16 S.E. 46,37 S.C. 354
• Parties: PELZER et al. v. DURHAM.
• Court: South Carolina Supreme Court

16 S.E. 46

37 S.C. 354

PELZER et al. v. DURHAM.

Supreme Court of South Carolina

October 8, 1892

Appeal from common pleas circuit court of Marion county; I. D WITHERSPOON, Judge.

Action by F. J. Pelzer and others, late partners in trade under the name of Pelzer, Rodgers & Co., against Margaret E. Durham. Judgment for defendant. Plaintiffs appeal. Affirmed.

C. A Woods, for appellants.

Johnson & Johnson, for respondent.

MCIVER C.J.

The plaintiffs brought this action to foreclose a mortgage of real estate, given to secure the payment of a bond conditioned for the payment of $4,000. These papers bear date 5th of February, 1886, but were not in fact delivered to and accepted by plaintiffs until the 17th of February, 1886. The only defense was that defendant was, at the time of the execution of the papers, and still is, a married woman, the wife of S. A. Durham. So that the real question in the case is more a question of fact than of law,--whether the contract evidenced by the bond and mortgage was a contract as to the separate estate of the feme covert, defendant. If it was, then it is clear that, under the law as it then stood the defendant is liable; but if it was not, then it is equally clear that she is not liable. It is also well settled that when a plaintiff brings his action to enforce a contract alleged to have been made by a married woman, the burden of proof is upon him to show that such contract was made with reference to her separate estate; but this may be shown by circumstantial evidence or inferences drawn from the circumstances, as well as by positive or direct evidence. For example, when a married woman applies for and obtains a loan of money, the natural inference is that she wants it for her own use, and so soon as she obtains the money it becomes a part of her separate estate, and her contract to return or repay the same is a contract as to her separate estate, which she is legally liable to perform, unless such inference is rebutted by the facts and circumstances attending the transaction. It is therefore generally proper, as well as necessary, to inquire into the surrounding circumstances where, as in this case, the papers do not show on their face that the contract was made with reference to the separate estate of the married woman. These general principles are so well settled by the numerous cases recently considered by this court that it can scarcely be necessary to refer to them particularly, and, while not designed to be exhaustive, are such as are necessary to be kept in mind in considering the present appeal.

Without undertaking to state the reasoning of the circuit judge in his decree set out in the "case," it is sufficient to say that he found as a matter of fact "that plaintiffs advanced the $4,000 to S. A. Durham, to be used in his business, and that the defendant's bond and mortgage were executed and delivered to the plaintiffs as security for the $4,000 advanced by plaintiffs to defendant's husband, S. A. Durham;" and he therefore rendered judgment that the complaint be dismissed. From this judgment plaintiffs appeal upon the following grounds, alleging the following errors: "(1) In admitting parol evidence to add to and vary the written contract between the plaintiffs and defendant. (2) In admitting in evidence the paper signed by S. A. Durham, and the correspondence of the plaintiffs with him. (3) In admitting in evidence the pencil memorandum of the bookkeeper of the plaintiffs, without proof that it was made by their authority. (4) In admitting the testimony of S. A. Durham as to the purpose for which Mrs. Durham drew drafts on plaintiffs. (5) In admitting the conversation as stated by S. A. Durham between F. J. Pelzer and himself as to what S. A. Durham proposed to do with the money, when none of it was paid to him, or was ever in their hands, subject to his control. (6) In admitting the testimony of S. A. Durham to alter the terms of his cotton obligation. (7) In not holding that when the alleged conversation took place between F. J. Pelzer and S. A. Durham the contract was binding upon both parties to the mortgage, subject only to the perfection of the title. (8) In not holding that where a married woman actually borrows money, as in this case, the money itself becomes a separate estate, and the contract is good without regard to the use made of the money, or the knowledge of what she intended to do with it. (9) In holding that the money was ever subject to the order of S. A. Durham in the hands of plaintiffs. (10) In holding that the 'plaintiffs advanced $4,000 to S. A. Durham, to be used in his business, and that the defendant's bond and mortgage were executed and delivered to plaintiffs as security for the $4,000 advanced by plaintiffs to defendant's husband, S. A. Durham.' (11) In holding that, even if S. A. Durham could be regarded as having borrowed the $4,000 from plaintiffs as agent for the defendant, the defendant's separate estate could not be held liable if the plaintiffs knew, when they advanced the $4,000, that the money was to be used by S. A. Durham in his business. (12) In holding that the money was used by S. A. Durham in his business, and that the plaintiffs knew it was to be so used. (13) In not holding that plaintiffs treated with S. A. Durham only as agent for his wife. (14) In not holding that the loan was made by the plaintiffs to Mrs. Durham; that the bond represented a valid debt against her, and the mortgage a valid incumbrance upon her property. (15) In not decreeing foreclosure and a reference to the master to ascertain the debt and attorneys' fees and expenses due on the mortgage."

It will be observed that the grounds of appeal from 1 to 6 inclusive, impute errors in the admission of testimony; and, while we do not find that any of these grounds were pressed in the argument of appellants' counsel, yet, as they do not appear to have been abandoned, we feel bound to consider them. We do not see that any parol evidence adding to or varying the terms of the written contract between the parties was either offered or admitted. All the parol evidence to which objection was made was admitted, and properly admitted, for the purpose, not of altering or even explaining any of the terms of the contract evidenced by the bond and mortgage, but for the purpose of throwing light upon the question whether the contract was such a one as the married woman had the power to make. As to the objection to the pencil memorandum on plaintiffs' books, where defendant's account appears, made the basis of the third ground of appeal, it is clearly unfounded. The plaintiffs themselves put their own books in evidence, and they cannot object to what appears thereon; especially when the testimony shows that such memorandum was made by their own agent, intrusted by them with the duty of keeping the books, and that it was put there for the purpose of showing that the defendant was to be charged with commissions on all cotton not shipped to plaintiffs; and the account in the books shows such a charge against defendant. As to the sixth ground, we do not understand that any testimony was received altering the terms of what is called the "cotton obligation," but simply for the purpose of showing that such obligation constituted a part of the inducement or consideration for the loan of the money secured by defendant's bond and mortgage. We do not think, therefore, that any of these six grounds can be sustained. As to the eighth ground, while the proposition of law there stated may be sound, it is not applicable to this case, until it is made to appear that the defendant actually borrowed the money, which the circuit judge finds as a matter of fact was not the case. As to the eleventh ground, the ruling there objected to was purely hypothetical, and, in view of the facts found, immaterial to the case. The remaining grounds of appeal need not be considered separately, as they all rest upon alleged erroneous findings of fact or alleged...