Appeal
from common pleas circuit court of Newberry county; D. A
Townsend, Judge.
Action
by George T. Reid against Mary F. Wells to foreclose a
mortgage. From a judgment for defendant, plaintiff appeals.
Affirmed.
The
following is the decree below:
"This case was commenced by service of summons and
complaint on the 21st of September, 1898; the complaint, in
the usual form for the foreclosure of a mortgage, claiming
judgment against the defendant for $1,060.35, and interest
from the 22nd January
1887, at 10 per cent. per annum. The defendant answered
admitting execution of a note and mortgage sued on, and
setting up payment, and a counterclaim by way of overpayment
to the amount of $1,687.32, and demanding judgment therefor.
The case was marked 'Submitted' at the November term
of court, and an order of reference taken. Pursuant to this
order, the reference was held on the 15th December, 1898. On
the 31st December, 1898, the master filed his report in favor
of the plaintiff, allowing the defendant a small credit. On
9th January, 1899, the defendant served the following
exceptions: (1) That the master erred in not giving his
conclusions of law and findings of facts separately. (2) That
the master erred in not making any findings of fact and
conclusions of law at all. (3) That the master erred in not
finding that the payment made on the note and mortgage
canceled and discharged the same, and overpaid
it by a large sum, for the amount of which overpayment
judgment should have been recommended for the defendant. (4)
That the master erred in holding that the plaintiff could
reply to the defendant's testimony given at the trial to
establish her counterclaim; the plaintiff not having replied
to defendant's answer, in which said counterclaim was set
up, and for which judgment was asked in her behalf. (5) That
the master erred in allowing the plaintiff and two of his
witnesses, Scurry and Irwin, to give on the trial irrelevant
and secondary evidence. (6) That the master erred in allowing
the plaintiff and his witnesses to testify to transactions
the highest and best evidence of which was in writing, and in
the plaintiff's possession. (7) That said report was
contrary to law and the overwhelming weight of the evidence.
I overrule the first exception, because the provision in the
Code, stating conclusions of law and of fact separately, is
directory, and not mandatory. I overrule the fourth
exception, because the alleged counterclaim was not pleaded
as a counterclaim. I overrule the second exception, because
counsel misapprehended the master as to his findings. I
overrule the fifth and sixth exceptions, because the books of
plaintiff, though important and likely to afford much more
full and accurate testimony, are no higher character of
evidence than his own testimony, or the testimony of his
witnesses. I overrule so much of the third exception as
relates to the alleged counterclaim, but I sustain the
remainder thereof, and also the seventh exception, because I
am convinced by the testimony that the note and mortgage have
been overpaid by a large amount. The proof is overwhelming
that the plaintiff received money or cotton, or both,
sufficient to largely overpay said debt, and it appears that
he would create the belief that it was applied to an account
held by him against the defendant. But he fails to produce
the account. He was a merchant, and kept books. These books must contain the entire transactions between
plaintiff and defendant, and a mere glance at them would
explain the whole matter. But he fails to produce them, and
does not explain why he does not produce them. The law favors
a merchant in this respect. It allows him to prove the
account by his books, and surely, if Mr. Reid had books and
accounts which absorbed so much of defendant's money as
he claims, he should by all means have produced the books. Of
course, he could prove his account without the books, if he
chose to do so, and could do so, because the books afforded
no higher evidence than his own oath; but the books would
show everything at a glance, and leave nothing to memory,
and, of course, would for these reasons alone, if nothing
else, be far more satisfactory. Instead of producing his
books, or even so much as a copy of the alleged account, he
merely refers to the account as a 'considerable'
account, and his witness, a former bookkeeper, refers to the
account as a 'considerable' one; and another witness
for plaintiff says it was 'a large account for a small
farmer'. This is not the kind of testimony the courts
expect from those who have it in their power to explain
matters that are undergoing investigation, and involving
large amounts of money or property. The pleas of payment in
the answer made it incumbent on the plaintiff to account for
the proceeds of the defendant's crops, and his failure to
aid the accounting by producing testimony so convenient as
his books, and which were more likely to be correct than
human memory, leads to the inevitable conclusion that he
could not do it, and that it must have been against him. It
is therefore ordered, adjudged, and decreed that the note and
mortgage sued on in this action were paid, satisfied, and
discharged before this action was commenced. It is further
ordered that the complaint be dismissed, with costs."
McIVER
C.J.
The
plaintiff commenced this action on the 21st of September,
1898, to foreclose a mortgage on real estate to secure the
payment of a note under seal given by the defendant to the
plaintiff on the 22d of January, 1887, for the sum of
$1,060.35, payable one day after date, with interest from
date at the rate of 10 per cent. per annum. The case was
heard by his honor, Judge Townsend, upon the pleadings, the
testimony, which is set out in the "case," the
report of the master, and the exceptions thereto; and on the
16th of March, 1899, he rendered his decree (a copy of which
should be incorporated in the report of this
case), in which he found that the note and mortgage had been
paid and satisfied before the commencement of this action,
and he therefore
adjudged that the complaint be dismissed, with costs. From
this judgment plaintiff appeals, basing his appeal upon the
16 exceptions set out in the record.
The
undisputed fact is that the note and mortgage were given to
secure the payment of the purchase money of a tract of land
covered by the mortgage, which was conveyed to the defendant
by the plaintiff at the date of said mortgage. The defendant
however, contended, and offered testimony tending to show,
that she went into possession of the said land about the
first of the year 1884, under a contract to purchase the same
from the plaintiff, made in the latter part of the year 1883,
and made sundry payments on the land by the delivery of
cotton, which she made from year to year, to the plaintiff.
This contention is denied by the plaintiff, and, as there was
no finding of fact either by the master or the circuit judge,
that question is not before us. The undisputed fact, however,
is that the defendant sent to the plaintiff sundry lots of
cotton,--all that was made from 1883 to 1887, as the
defendant testifies; and the proceeds of such cotton appear,
from the cotton bills introduced in evidence, to have been
credited "on account," though portions thereof
appear to have been paid in cash. The defendant also
testified that she continued to send him (Reid) all the
cotton from 1887 to 1897, and this is corroborated by the
cotton bills offered in evidence; and the defendant also says
that she "told Mr. Reid the cotton was to go upon the
land." The defendant's husband, who seems to have
been her agent in delivering the cotton, also testified that
"along at the first--the first two or three
years"--he directed that the proceeds of the cotton
should be credited on the note, and says, "In 1888 I
told him to put it upon the land," which last testimony
is corroborated by the plaintiff's bookkeeper, Scurry,
who testified that "only this one time" was he
directed to credit the cotton on the note and
mortgage; and the cotton bill of the 30th and 31st of
January, 1888, the net proceeds of which was $181.46, is
credited as follows: "Cr. Acct. & Mortg. &...
