Straub v. Screven

• Citation: 19 S.C. 445
• Parties: STRAUB v. SCREVEN.
• Decision Date: 29 June 1883
• Court: United States State Supreme Court of South Carolina

19 S.C. 445

STRAUB

v.SCREVEN.

Supreme Court of South Carolina.

Jun. 29th, 1883.

1. A note having been given for the purchase of goods delivered to the maker, the payee “retaining title, ownership and possession” until the note was fully paid, the parties stood toward each other in the relation of mortgagor and mortgagee, and, on default, the payee might seize some or all of the goods, or he might sue on the note.

2. A subsequent mortgagee having seized some of these goods, and then, on threat of suit, surrendered a part to the payee of said note and paid $50, the maker is entitled to credit on his note only for what the payee so received.

3. A mortgagor of chattels is entitled to credit only for the net proceeds of sale of the chattels seized on default, the expenses of seizure and sale being deducted.

4. Contracts must be construed by the words which they contain, and not with reference to words omitted or erased.

5. The complaint stated the note and credits, and demanded judgment for a specified sum. The answer admitted these allegations. The judge who tried the cause reduced the amount of one of the credits, and gave judgment for a sum larger than was demanded. Held, that to this extent there was error. This case distinguished from Kaphan v. Ryan (6), 16 S. C. 352, and Chapman v. Lipscomb, 18 S. C. 235.

6. The appeal sustained nisi.

Before KERSHAW, J., Richland, October, 1882.

The opinion fully states the case.

Mr. N. K. Perry, for appellant.

Mr. W. H. Lyles, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

This was an action on four notes under seal, all of the same tenor, except as to the time of payment, and the following copy of the first note will, for the purposes of this case, serve as a copy of each of the notes:

“$120.

COLUMBIA, S. C., April 2d, 1880.

“On or before the second (2) day of November, 1880, I promise to pay A. W. Straub, or order, one hundred and twenty dollars, for value received in delivering to me of three 20? mills, and if not punctually paid at maturity, with interest from that time at 7 per cent. [ ], and I hereby waive the benefit of the homestead exemption as to this debt. It is furthermore the express condition of the delivery of said three mills to me that the title, ownership or possession does not pass from the said A. W. Straub until the note and interest is paid in full, and he may take possession of said three mills now at Grange, Transylvania county, N. C., and sell the same for my account, at any time, in case this note is not punctually paid, [ ].

Witness:

E. W. SCREVEN, [L. S.]

“NEWMAN K. PERRY.”

The erasures indicated in the foregoing copy, and relied upon by appellant in his argument, were made before the notes were signed.

The plaintiff, in his complaint, admitted that he had taken possession of one of the mills, which, he says, he had been unable to sell without a sacrifice, but he alleges that the value of said mill is not more than $125. He also admitted the receipt of $50 from one Dial for his interest in another mill which he had seized; and in making up the statement of the balance due he allows the defendant credit for this $125, as well as for the $50 received from Dial, and only demands judgment for $325.30, with interest from November 2d, 1881. The defense was that the notes had been satisfied by the seizure of the mills by the plaintiff, under the authority contained in the notes.

The case was tried by the Circuit judge, without a jury, and he found, as matter of fact, that one of the mills which had been taken possession of by the plaintiff, had been sold since the commencement of this action, and brought the sum of $100, and that it cost the plaintiff $9 to transport the same to place of sale; that the notes sued upon were left by defendant in the hands of his attorney to be delivered to the plaintiff, but that defendant took possession of the mills as soon as the notes were signed; that after the notes were signed, but before June 18th, 1880, the defendant gave to Dial a mortgage on said mills, giving him notice of plaintiff's claim, and on that day, after the mortgage to Dial was executed, the said notes were delivered to the plaintiff; that the mills were taken to North Carolina by the defendant, and plaintiff had his mortgage recorded there; that Dial sent his mortgage to North Corolina, and seized the mills thereunder, denying notice of plaintiff's mortgage; that plaintiff threatened Dial with suit, and he proposed to divide the mills, to which plaintiff agreed, and each took one mill, Dial paying $50 to plaintiff and retaining the other mill. And, as matter of law, he found: “That plaintiff is entitled to recover against the defendant on said notes, with interest, according to their tenor and effect, less the amount actually received by him from Dial and from the sale of the mill, which he recovered less expenses.”

He therefore rendered judgment for the sum of $359.30, with interest from November 2d, 1881, which, it will be observed, exceeds the sum for which judgment was demanded in the complaint,by the sum of $34. This difference, doubtless, arose from the fact that the plaintiff, in computing the balance due on the debt, gave credit for $125, the estimated value of the mill, of which the plaintiff had taken possession, which had not been sold at the time the complaint was filed, whereas the Circuit judge only gave defendant credit for the actual amount which the mill brought when it was sold-$100- less the expenses of such sale, $9.

The defendant appeals upon the following grounds:

1. “Because his Honor erred in holding ‘That plaintiff recover against the defendant on said notes, according to their tenor and effect.’

2. “Because his Honor erred in holding that the defendant pay expenses attending sale of one of said mills.

3. “Because his Honor erred in not holding that Dial, being a subsequent creditor with notice, and receiving one-half of the mills with consent of plaintiff, defendant was not liable for mills so released.

4. “Because his Honor erred in not holding that the plaintiff, having taken possession of said mills and detained the same with Dial, was an extinguishment of defendant's notes.

5. “Because his Honor erred in not holding that plaintiff's declaration of part possession of mills, and subsequent disposition by compromise to Dial of the other part, was possession of the whole, and such possession was a satisfaction of defendant's obligations.

6. “Because his Honor erred in adjudging for plaintiff $359.30 and...