Trimmier v. Liles

• Citation: 36 S.E. 652,58 S.C. 284
• Parties: TRIMMIER. v. LILES et al.
• Decision Date: 27 July 1900
• Court: United States State Supreme Court of South Carolina

58 S.C. 284

36 S.E. 652

TRIMMIER.

v.LILES et al.

Supreme Court of South Carolina.

July 27, 1900.

EQUITY—CHANCELLOR — POWERS — MASTER'S REPORT—SUBMISSION OP ISSUES TO JURY-WRITTEN INSTRUMENT — CONSIDERATION — ORAL TESTIMONY—AFFIRMATIVE OF ISSUE-REFERENCE OUT OF TERM.

1. Plaintiff sued on a note executed to his testator by defendant, who claimed that $3,000 of it was to save the testator harmless as surety on defendant's bond, and that the obligation of the bond had been discharged. By agreement of attorneys the matter was referred to a master, who reported adversely to defendant. Held, that the chancellor had power, on return of the report, of his own discretion and without a motion for reference, to order the issue to be submitted to a jury.

2. Where plaintiff sued on a note executed to his testator by defendant, oral evidence was admissible to show that part of the consideration for the note was to save the testator harmless as surety on defendant's bond, and that the obligation of the bond had been discharged.

3. Where the chancellor, on return of the master's report, ordered one of the issues to be submitted to a jury, he had power to desig-nate which party should uphold the affirmative of the issue.

4. Where the chancellor, on return of a master's report, ordered one of the issues to be submitted to a jury, an objection that he had no authority to order the issue to be tried at another term of court was not well taken, since the issue was heard at a regular term, and the chancellor's decision, when rendered, would be referred as a matter of law to the term at which the issue was tried.

Appeal from common pleas circuit court of Spartanburg county; G. W. Gage, Judge.

Action by T. R. Trimmier, as administrator, against J. B. Liles and another. From a decree denying a part of defendant J. B. Liles' counterclaim, and ordering the finding of a master in favor of plaintiff to be submitted to a jury, both plaintiff and defendants appeal. Affirmed.

J. T. Johnson and Duncan & Sanders, for plaintiff.

Simpson & Bomar, for defendants.

POPE, J. On the 13th day of February, 1888, the defendant J. B. Liles made his promissory note, due at 10 months after date, for $4,061.51, with interest from date at 10 per cent. per annum payable annually, unto F. M. Trimmier, or order, and on the same day he executed unto the said F. M. Trimmier, in order to secure said note, a mortgage on a fraction of an acre of land situate in the town of Spartanburg, S. C., and whereon was located a two-story brick storehouse, occupied at that time by Reed & Liles, and a warehouse, occupied by J. B. Liles. On the —— day of July, 1894, this action was brought. In the complaint it was alleged that F. M. Trimmier departed this life on the 17th of August, 1888, testate; that Margaret Trimmier procured letters of administration on his estate with his will annexed, and that upon her death, the plaintiff was duly appointed administrator de bonis non cum testamento annexo of the estate of the said F. M. Trimmier, deceased; that the said J. B. Liles has not paid said debt but "has made some payments on his said note, but the exact amount of same this plaintiff does not know"; that Henry V. Liles is made party defendant because he claims to own some interest in or lien upon the real estate mortgaged to plaintiff's testator, but no personal judgment will be demanded against him in this transaction. J. B. Liles answered, admitting that he made the promissory note in question, together with the mortgage of real estate, as alleged in plaintiff's complaint; but he avers that said note represented in all of its terms only a debt due by J. B. Liles of $1,060, and the remaining $3,000 thereof was a liability of his to said F. M. Trimmier, as his surety to the guardianship bond of J. B. Liles as the guardian of the estate of J. H. Fowler, a minor, which liability is canceled and annulled by reason of J. B. Liles having paid and discharged every part of the estate of said J. H. Fowler to the administrator of the estate of said J. H. Fowler, deceased, and that J. B. Liles has paid much, if not all, of the sum of $1,060 which said note of his to F. M. Trimmier called for. By consent, an order was passed by Judge Fraser, on October 31, 1894, by which all the issues of law and fact were referred to the master for Spartanburg, with directions to report his conclusions thereon to the court At the reference before the master there was testimony introduced tending to show that $3,000 of the $4,060 note was to cover and protect $3,000 of the liability of the said F. M. Trimmier, deceased, as the surety on the guardianship bond of J. B. Liles as guardian of the estate of J. H. Fowler, a minor, which liability, it was proved, had been fully terminated by the payment of every dollar thereof. However, the master held that proof was not convincing to his mind that the contention of the defendant J. B. Liles was correct as to the $3,000; for he held that said $3,000 was still a subsisting part of the debt evidenced by the note for $4,060. When he came to pass upon the credits which J. B. Liles set up against the said note, he sustained sums which aggregated $1,824.05 as credits to which J. B....