Opinion
12847
February 26, 1930.
Before WILSON, J., December, 1927, and SHIPP, J., Clarendon, October, 1928. Affirmed.
Action by R.B. McNeal against R.L. Herring and another, in which defendant Herring filed a counterclaim. From an order revoking and rescinding an order dismissing the case, denying defendants' motion for a directed verdict and dismissal of the action, granting plaintiff's motion for judgment and denying defendants' motion for a new trial, defendants appeal.
The order sustaining the motion to revoke and rescind the order dismissing the case, the statements of the lawyers and Judge when he directed the verdict for plaintiff, and defendants' exceptions, were as follows:
ORDERThis matter comes before me upon motion of plaintiff's attorney to revoke and rescind an order heretofore signed by me herein, which order recited that the plaintiff had been paid, and, therefore, dismissing the action. A brief review of the facts is necessary in order to understand the matter, as the situation is a peculiar one.
The plaintiff, McNeal, had a note and a chattel mortgage executed by the defendant, Herring, for $160.00. The defendant, Herring, as appears by the pleadings, sold some of the mortgaged property and deposited $160.00 with the Clerk of Court. The plaintiff instituted this action in claim and delivery against the defendant, Herring, for the property and made the Clerk of Court a party, alleging that he had received the proceeds of a portion of the mortgaged property. By agreement between the attorneys the papers were not served regularly but were sent to the defendant Herring's, attorney who returned to plaintiff's attorneys a bond in due course and answered. It seems that all the time the attorneys were trying to arrange a settlement. The answer was served the latter part of November or first of December, and on December 7th, 1927, by negotiation over the telephone, the attorneys, either formally or conditionally, agreed upon a settlement of $140.00. Plaintiff's attorney claimed that he agreed to recommend it to his client, but this difference is immaterial in my view of the case. On December 8th, plaintiff's attorneys wrote his client, McNeal, who lives in Columbia, of the offer of settlement, and on December 9th, his client answered, which plaintiff's attorney received the next day, December 10th; and the same day wrote defendant Herring's, attorney confirming the telephone conversation and stating that the plaintiff would take $140.00 net in full satisfaction of the note and chattel mortgage. Plaintiff's attorney enclosed a proposed order ending the action and providing therein that the $400.00 deposited in the hands of the Clerk of Court as a cash bond in claim and delivery by the plaintiff should be returned. On December 12th defendant Herring's attorney answered returning the proposed order with his consent endorsed thereon and in his letter stated that plaintiff's attorney was not to use the order unless his replevin bond was returned to him, and continued: "If it is agreeable with you to return my bond and go ahead and have this order signed, you may present same to the Clerk of Court and this will be his authority for paying you as attorneys for McNeal $140.00, and let him send me check for the balance." The proposed order to the Clerk of Court for him to consent to, as he did. Then, as appears by affidavit, plaintiff's attorney found that I was away from Manning for the day, but the next day, December 14th, the consent order was presented to me with the letter of defendant Herring's, attorney by plaintiff's attorney and obtained my signature to the proposed order. Plaintiff's attorney then, during banking hours, presented same to the Clerk of Court, with the letter from defendant Herring's, attorney planning to get the $140.00 from the Clerk of Court and file the order dismissing the action. The Clerk of Court stated that he had deposited the money in the First National Bank of Manning which had failed to open that morning and hence would not pay over the money. Plaintiff's attorney then communicated this information to defendant Herring's, attorney and as they were unable to come to any agreement the motion was made to revoke and rescind the order signed by me.
From this statement is it clear that it was in contemplation of all parties that the plaintiff was to receive the money before the action was terminated; and on the other hand that the action was to be terminated when the defendant Herring paid over the money. The defendant Herring's attorney provided for the money to be paid over after the order was signed, but no one contemplated the Clerk of Court failing to pay it over. The plaintiff's attorney was acting for himself and his client and also for defendant Herring's attorney and his client; and, acting under the instructions of the defendant Herring's attorney and the plan proposed and agreed to by both parties and followed, was the natural and the proper course to follow in carrying out the compromise settlement out of Court. To allow the defendant Herring to take advantage of the fact that the order recites that the money has been paid, when under the undisputed facts in the case it has not been paid, would be to substitute form for justice and would do a gross injustice.
Courts often relieve from judgments obtained by fraud or for other grounds that go to the heart of the proceeding. In this case, in the contemplation of the parties, there was no judgment and the matter was not settled until the money was paid, the action discontinued and the bond returned or released, but all of these were concurrent to be simultaneously performed, and the fact that the order was signed before or after the money was actually paid has nothing to do with the real facts of the situation and the intention of the parties in the compromise of their difference. It is, therefore,
Ordered that the order made herein dated Dec. 14th, 1927, is hereby revoked and rescinded and the plaintiff hereby given leave to serve a reply on the defendant Herring to the answer pleading a counterclaim herein within twenty days of the date hereof.
Mr. Truluck: If your Honor please, we move for a directed verdict:
First: On the ground on which I started to make it a few minutes ago, and that is that there is no evidence that the conditions of the mortgage have been breached. Now, if your Honor please, the only evidence pertaining to the breach of the conditions of the mortgage is the mortgage itself. We deny in our answer that paragraph specifically, and in order for them to recover, they have got to have some evidence that the conditions of the mortgage have been breached. On the other hand, the defendant, R.L. Herring, testified on the stand that he had tendered to the plaintiff the money before maturity, and then placed it in the hands of the Clerk, which is —
The Court: The trouble about that is this: As far as the condition being broken, here is a mortgage for $160.00. The plaintiff testified that there has never been any amount paid to him. That would be breaking of the mortgage, when it comes due and not paid at maturity.
Mr. Truluck: Then we move that the claim and delivery case be dismissed and that he follow the fund, because Ruling Case Law says that when money is paid into the Court, discharge has been made, and the money belongs to the plaintiff. Here is a case (reading).
The Court: That is all right. I acknowledge that. The thing about it is did you — as far as payment of money into Court is concerned, that is for the purpose of keeping tender open. You tendered him $60.00 at one time and $100.00 at another time. You have to tender it all at one time. If you did that and he refused it, and you placed it in the hands of the Court, you would win your case.
Mr. Truluck: Then, your Honor, there is a contention as to the amount due. My client says $100.00 and he —
The Court: If you can show you tendered him $100.00, and he didn't take it, and you placed it in the hands of the Court, and the jury finds that there is only $100.00 due, then they would have to find for you.
Mr. Truluck: The Ruling Case Law says that the claim and delivery case be dismissed, and that he follow the fund.
The Court: I don't care what the Ruling Case Law says; we have a Statute on it. What would happen if the jury finds he is entitled to $160.00?
Mr. Truluck: Then he is entitled to $160.00; he can't get the $160.00 and all the property —
The Court: Sometimes they ask for a whole lot but don't get everything they ask for, the Court always gives him an opportunity to pay what he owes.
Mr. Durant: If your Honor please, the plaintiff moves for judgment for $100.00, or the property — I believe that is the form in a claim and delivery proceeding — upon these grounds:
First: That the defendant testified that he did receive $100.00 and under the Statute that is completed; he is entitled to that without interest or costs.
Now, there has been no tender made in this case, in accordance with the law governing tender. I will read you the opinion of Judge Woods (reading).
The Court: I don't want any authority on that. If I owe a man any money I have got to tender it to him unconditionally.
Mr. Durant: Now, then, he sends a check that is payment in full, and puts a provision there in regard to it. It is not an unconditional offer and hence not tender. Now as to money in the hands of the Clerk —
The Court: You have got in your complaint here an allegation —
Mr. Durant: The allegation, if your Honor please, is this: that he had sold some of the crop, and the proceeds of the sale of the crop were in the hands of the Clerk.
The Court: That he disposed of a portion of the crop covered by the mortgage, and deposited the proceeds thereof with the Clerk of Court.
Mr. Durant: Yes, sir; that is the proceeds of the crop. We were following and identifying the proceeds of the crop into the hands of the Clerk, so as to nail the money so that he could not turn it back. Now, in this receipt (reading). Here is the simple proposition of tender as he calls it; it was a conditional tender; it wasn't an unconditional tender. It was not tender, because the law says it must be absolutely unconditional. This was to avoid a criminal prosecution. So, then, it comes back to this: under their own statement, under their own claim, he has not made a tender that satisfies the mortgage or anything else. That being the case we ask for judgment for $100.00; we are entitled to this in this action.
The Court: What about his counterclaim?
Mr. Durant: There is nothing to that, if your Honor please —
The Court: The counterclaim is based on the allegations of tender.
Mr. Durant: He couldn't put up a counterclaim in contradiction of his contention. The law never allows that. We had to come into Court to get it, and I submit we are entitled to that $100.00.
Mr. Truluck: If your Honor please, if he is entitled to the $100 it would be unquestionable that we tendered it to him.
The Court: Let me see if you tendered it to him. You offered him $100.00.
Mr. Truluck: Yes, sir.
The Court: If you succeed in showing you owe him only $100.00, you put that money in the hands of the Clerk of Court, and you reserve the right to withdraw it at any time.
Mr. Truluck: No, sir. In other words, here, if your Honor please —
The Court: Wait a minute. If that paper don't reserve the right in R.L. Herring, at any time, before either of those things —
Mr. Truluck: That precluded him —
The Court: When you put that in there as tender, and leave the tender open, it is just so that other man can go there and get it.
Mr. Truluck: If your Honor please, that would certainly be a hardship on us.
The Court: Now, here is the way I look at the case. I am going to decide it now like I think the law is. If anybody is not satisfied at the way I decide it, the Supreme Court can correct me. When those orders were passed, you had a right to test them. Now, the law is plain. Now, to keep a tender open, you offer to pay the man the money unconditionally, and if he refuses to take it, you go and place it in the hands of the Clerk of Court without any conditions attached to it. The paper before us shows not only conditions attached to it, but it shows the right to the defendant to go there and take it out when he got ready. You tell me that is keeping the tender good?
Mr. Truluck: If your Honor please, I don't want to be insistent, but certainly there is no dispute of evidence we offered him the $100.00, and it couldn't be disputed that the tender was kept open as to the hundred dollars.
The Court: If you hadn't put that condition on it there, the right reserved to Herring at any time to go there and withdraw it.
Mr. Truluck: Yes, sir, until a settlement was had.
The Court: I understand —
Mr. Truluck: Now about this clause here, "Pending settlement of the chattel mortgage"? That clause shows absolutely that the only reason that money was deposited there was to keep the tender open and to keep from being prosecuted.
The Court: Here is my idea about it; If I don't direct a right sort of verdict, and ought to have directed it the other way, the Supreme Court will set it aside. If that tender had been all right you would have a right to go to the jury. Probably I might — I don't see any question I can submit to the jury.
Mr. Truluck: Isn't the question of tender a question for the jury?
The Court: Yes, sir, where the facts are disputed.
Mr. Truluck: The facts are absolutely disputed.
The Court: There is no dispute about this paper.
Mr. Truluck: Dispute about the interpretation of it.
The Court: When it comes to the interpretation of a paper, the Court is the one to decide what that paper means.
Mr. Truluck: What about usury?
The Court: He has practically given you sixty dollars; that would cut out usury. When a man sues on a contract, and the other man sets up usury, and he shows usury, it makes the party committing usury forfeit all interest, and also prevents him from recovering all costs in the case. If he pleaded — based his counterclaim on usury, which he has not done, he might — I think now, if I direct a verdict for the plaintiff without costs —
Mr. Durant: That is what we ask for.
The Court: $100.00.
Mr. Truluck: We would be entitled to have the case go to the jury on the counterclaim.
The Court: Your counterclaim is based on the fact that he tendered the money and there is nothing due.
Mr. Truluck: It is admitted here he tendered him the $100.00, but it is offered on the condition that if you dispute it, send it back to me.
The Court: If you had offered the $100.00, and you show he is only entitled to $100.00, he would still be entitled to hundred dollars. You didn't keep that tender open, because the paper that you took from the Clerk, when you put the money there, contained several conditions, one of which was reserving the right to your client to take the money out of there, when he got ready. That destroyed it. Bring the jury out. (The jury returns.)
The Court: Mr. Foreman and Gentlemen of the jury, as I said to counsel this morning, whenever you get into one of these claim and delivery cases, the simplest one of them is a very difficult case for the jury to try, and sometimes there are other issues injected into them that makes them more difficult. Now, the main question of dispute between these people is, the plaintiff claims he loaned $160.00 to the defendant, and took a mortgage. The defendant claims he didn't give him but a hundred dollars, and took the mortgage, and charged him $60.00 interest. Now, he admits that he owed the hundred dollars, and his defense is that he tendered back to him before suit was brought $100.00. Now, under the law, if you owe a man a debt and you go to him and offer him the money, offer to pay the debt, and he doesn't take it, you still owe the debt, and in order to stop interest and costs on the case, the law requires you to go and deposit that money in the hands of the Clerk of Court, so that the man can go there and get it whenever he wants it, but you have to deposit it unconditionally.
Now, it appears, that this action for a directed verdict for the plaintiff for the amount the defendant admits he owes him, which is $100.00, should be granted. Now, when it comes to the question of costs, why admitting now, that the defendant got only $100.00, the plaintiff forfeits all interest; he can't get any interest, and he can't make the defendant pay the costs on the case. The costs, then have to fall on the plaintiff in the case.
Now, when the defendant deposited the money in the hands of the Clerk of Court, if he had deposited it there unconditionally so that plaintiff would have only to go and get the money, it would be a good tender, but he deposited there with the condition, reserving the right to the defendant to go there and at any time and get the money out. Therefore the tender was lost. Therefore, I am going to ask you to write a verdict, "We find for the plaintiff the property in dispute, or $200.00, the value thereof," and then you say, "We find that the amount due by the defendant to the plaintiff is $100.00" so that, now, let me fix that verdict, because, Mr. Foreman, the Legislature now has fixed it so that when a man is sued on a mortgage for the recovery of property of this sort, while you bring in a verdict for the plaintiff for the property in dispute, or the value of it, the jury must also find the amount of the debt, so that party can pay the debt and get his property back, and settle it all in one case. I say that, Mr. Truluck, so that if I am wrong in doing what I did in this case, the Supreme Court will fix it. Mr. Foreman, when a man sues for a verdict on a mortgage, the law lays down the form of verdict. "We find for the plaintiff the property in dispute; if it cannot be delivered, then the value of the property. He hasn't got the right to that property; all he is interested in is getting the amount of the debt collected. Find the amount of the debt, and give the defendant the right to go there and pay the debt and prevent him from taking the property.
Mr. Truluck: If your Honor please, if the bank were open, that verdict would suit us fine.
The Court: Well, I can't help whether it suits you or not; that is my idea about the law. You are winning the case by making the other side pay the costs and getting rid of sixty dollars anyhow.
EXCEPTIONS1. That his Honor John S. Wilson erred, it is respectfully submitted, in not finding and holding that the reason plaintiff did not receive the $140.00 was on account of negligence and delay by him after the case was settled on Dec. 7th, 1927.
2. That his Honor erred, it is respectfully submitted, in revoking and rescinding the order dated Dec. 14th, 1927, and refusing to order defendant's bond returned to him, because the conditions of defendant's bond had been fulfilled and the mortgage lien satisfied.
3. That his Honor, S.W.G. Shipp, erred, it is respectfully submitted, in refusing to sustain the defendant's demurrer, in that plaintiff has attempted to improperly join two separate causes of action.
4. That his Honor, S.W.G. Shipp, erred, it is respectfully submitted, in directing verdict for plaintiff as the question of tender is purely a question of fact for the jury.
5. That his Honor erred, it is respectfully submitted, in not allowing the jury to pass upon the question of damages for defendant, there being ample evidence to support damages.
6. That his Honor erred, it is respectfully submitted, in directing a verdict for plaintiff for the possession of property in that the mortgage lien was discharged on account of tender by defendant and on account of a greater amount being inserted in the mortgage than the defendant had received.
7. That his Honor erred, it is respectfully submitted, in refusing to submit defendant's counterclaim for damages to the jury, this being clearly a question of fact for the jury.
8. That his Honor erred, it is respectfully submitted, in holding that the lien was not discharged when tender of the amount due was made and after being arbitrarily refused by plaintiff, brought into Court for the purpose of discharging the lien.
9. That his Honor erred, it is respectfully submitted, in refusing to allow defendant to prove the value of the property in question.
10. That his Honor erred, it is respectfully submitted, in not directing a verdict for the defendant, because all the evidence shows that the correct amount due on the mortgage had been properly tendered, and plaintiff refused payment not in good faith but for the purpose of collecting usurious rate of interest.
11. That his Honor erred, it is respectfully submitted, in not holding that the lien of the mortgage was discharged, because an amount in excess of the actual amount of money and legal rate of interest received by the borrower was inserted in the mortgage.
12. That his Honor erred, it is respectfully submitted, in holding and ruling that plaintiff could claim that the lien of the mortgage was not discharged when it was admitted that the $100.00 was offered him and when it was proven that plaintiff was demanding $60.00 more than was actually and legally due which on its face shows usury.
13. That his Honor erred, it is respectfully submitted, in granting plaintiff's motion for a directed verdict for $100.00, being the amount due and giving judgment for the possession of the property, but if possession cannot be had for the value thereof, to wit: $200.00, when the evidence showed that defendant had offered plaintiff the $100.00 which was the amount admitted by plaintiff in his motion for a directed verdict to be due, which clearly shows plaintiff's refusal to accept $100.00 when offered by defendant was for the purpose of collecting $60.00 usurious interest on $100.00 loan.
Messrs. Truluck Truluck, for appellant, cite: Tender of mortgage debt discharges mortgage: Sec. 5630, Code; 52 S.E., 44; 87 S.E., 230; 14 S.C. 66; 26 S.C. 347; 88 S.C. 537; 75 S.E., 273. May recover damages on counterclaim for unlawful taking: Sec. 600, Code Proc.; 128 S.E., 728.
Messrs. DuRant Sneeden, for respondent.
February 26, 1930. The opinion of the Court was delivered by
This is a claim and delivery action by the plaintiff against the defendants asking judgment: (1) For the possession of the crops and chattels described therein; (2) for the sum of $200, the value thereof, in case delivery thereof cannot be made; (3) for the sum of $160 in hands of Clerk of Court. This action was begun October 15, 1927, and is based on a chattel mortgage executed by R.L. Herring to R.B. McNeal for $160, bearing date April 6, 1927, and maturing September 5, 1927. Before action was begun and before maturity of the mortgage, the defendant R.L. Herring tendered to R.B. McNeal the sum of $100, which was the amount Herring claimed to have received from McNeal; this was refused by McNeal, but it was the amount which he received judgment for on his own motion at the trial of the case; whereupon Herring deposited with the Clerk of Court before maturity of the mortgage the full amount of the paper, to wit, $160, for the purpose of keeping his tender good and to protect himself. The defendant gave bond, answered, and demurred to the complaint.
Before the trial of the case a settlement was reached on December 7, 1927, whereby the Clerk of Court was to pay the plaintiff the sum of $140 out of the $160 deposited with him, and on motion of plaintiff an order was singed by Hon. John S. Wilson, which was consented to by the defendants. This order is dated December 14, 1927, and it dismisses the case after setting forth that the note and mortgage have been paid. When the order was presented to the Clerk of Court by plaintiff the Clerk informed him that he had deposited the $160 which the defendant Herring had left with him, in the First National Bank of Manning, and it had failed to open on the morning of December 14, 1927. The plaintiff then moved for an order revoking and rescinding the order dated December 14, 1927, which had dismissed the case; this motion was sustained by Judge Wilson on March 2, 1928, and in the order he allowed attorneys for plaintiff to file a reply to defendant's counterclaim. By agreement of attorneys, time for appealing from Judge Wilson's order dated March 2, 1928, was extended until the case was tried. The case came on for trial before Hon. S.W.G. Shipp and a jury, October 30th, 1928. At the conclusion of the testimony defendant moved for a directed verdict on the ground that there was no evidence that the conditions of the mortgage had been breached. This motion was denied, and the defendant then made a motion for the claim and delivery proceedings to be dismissed, and plaintiff required to follow the fund, which was also refused. Then plaintiff moved for judgment for $100 or the property, on the ground that the defendant testified that he did receive $100, and this motion was granted; defendant then made a motion for a new trial on the ground that tender had been kept good and the question of damages to defendant was a question for the jury, both of the above questions being questions of fact; the motion was refused. It is from the order of Hon. John S. Wilson dated March 2, 1928, and from the rulings of the trial Judge in the case and from his refusal to grant a new trial, that defendant appeals.
There are thirteen exceptions.
We see no error as complained of by the exceptions; the exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES BLEASE and CARTER concur.
MESSRS. JUSTICES COTHRAN and STABLER concur in result.