Opinion
13883
July 9, 1934.
Before JOHNSON, J., Aiken, January, 1933. Affirmed.
Proceeding by J. Ernest Thorpe and others against Albert S. Fant, as State Bank Examiner of South Carolina, and others, wherein Horace J. Crouch filed a petition against T.G. Tarver, as receiver of the Bank of Western Carolina. From a judgment in favor of petitioner, the receiver appeals.
The Master's report and the decree of Judge Johnson follow:
MASTER'S REPORTThis is an action seeking to have a certain account of the plaintiff in the Bank of Western Carolina at Barnwell, S.C. declared a preferred debt. The matter was referred to me under order of reference and removal from the Court of Common Pleas for Barnwell County. A reference has been held and such testimony taken as was submitted by counsel, which is herewith transmitted to the Court, together with the several exhibits admitted into evidence. Subsequently to the taking of the testimony this matter was ably and fully argued before me by counsel of both parties.
Briefly, the facts in this case are:
On the morning of the 13th of October, 1931, the plaintiff, Horace J. Crouch, posted a letter addressed to the Bank of Western Carolina at Barnwell, S.C. which letter was received by those in charge of the Bank during banking hours on the same day. It appears that the letter contained a check for one thousand dollars drawn by the Phoenix Mutual Life Insurance Company in favor of Horace J. Crouch, with certain instructions in regard to the disposition of said check. The bank at Barnwell received the letter containing the check, properly endorsed by Crouch and the letter or note of instructions contained therein. The check was promptly forwarded to the drawee bank in New York and payment thereof was duly made on the 15th of October at 2:00 o'clock a. m. The bank at Barnwell closed its doors at the regular time on the 14th of October, but failed to open on the morning of the 15th, having been taken over by the State Bank Examiner for a period of thirty days as provided by law. The bank at the time of receiving aforesaid check held a past-due note of the plaintiff in the sum of $200.00. This note duly cancelled, together with a deposit slip showing the one-thousand-dollar check deposited to the credit of plaintiff, less the $200.00 in payment of note, was forwarded to the plaintiff by the officers of the bank on the 13th of October; and it appears that plaintiff received same through the mail on the 15th of October. The question arises when should this credit have been placed to plaintiff's account?
The law applicable to this case is clear and no question of law is involved. It is solely a question of fact and equity and the whole issue hangs upon one fact: Did the plaintiff, Horace J. Crouch, forward the check to the bank for collection or for deposit? We have the testimony of three witnesses upon which to render a decision, Mr. Crouch, the plaintiff; Mr. Price, the manager of the bank at Barnwell, and his assistant, Mr. Turner. I noted carefully the demeanor of each witness upon the stand and I was impressed with their intelligence, truthfulness and sincerity. There seemed to be an earnest desire on the part of all to bring as much light as possible on the issue.
Let us consider the testimony. The plaintiff states in positive and unequivocal language that he sent a letter of instruction to the bank, requesting that the check be forwarded for collection, and when collected to deduct the $200.00 due on his note and place the balance to his credit. Mr. Price and Mr. Turner, witnesses for the defendant, do not testify positively as to the contents of Mr. Crouch's letter, but their recollection of the transaction is that the check was sent for deposit. They do not positively contradict the statement of Mr. Crouch. The letter of instructions referred to was not introduced at the hearing and the evidence is that the letter was lost or destroyed. The preservation of this letter would have solved the issue absolutely. We must, therefore, consider the facts of this case in the light of surrounding circumstances. The check involved represented the proceeds of a loan obtained by the plaintiff on his life insurance policy. It was a larger sum than he usually handled. It was an important transaction for the plaintiff for he was drawing upon the resources of his life insurance policy. It was one single matter of business for the plaintiff. These various circumstances are conducive to impress the mind with a retentive recollection of the details of everything in connection therewith, and for that reason the plaintiff's positive statement about the transaction is very persuasive. On the other hand, Mr. Price and Mr. Turner, the two officers of the bank, handled the transaction along with others. It was a part of their daily routine. It would be difficult for them to remember what at that time seemed an apparent unimportant detail in one transaction when many were handled by them in one day.
In view of the circumstances as set forth above, I am constrained to find that as a matter of fact and equity, the plaintiff is entitled to the relief prayed for in the complaint, and I so recommend.
DECREEThis action was commenced by the petitioner, Horace J. Crouch, in the Court of Common Pleas for Barnwell County, for the purpose of having his claim of Eight Hundred ($800.00) Dollars against the insolvent Bank of Western Carolina declared a preferred claim, and to be paid in full by the receiver out of the assets of the bank.
By an order of Judge M.M. Mann, presiding in the 2nd Circuit, the cause was removed from Barnwell County to the Court of Common Pleas of Aiken County for trial, and in said order the cause was referred to the Master of Aiken County to take the testimony on all the issues raised by the pleadings, and report the same back to the Court together with his findings of fact and conclusions of law.
The Master of Aiken County held a reference, or references, in the cause, took the testimony, offered on behalf of the petitioner and the receiver, and duly filed his report in which he found, as a matter of fact, and recommended, that the petitioner was entitled to the relief prayed for in the complaint. T.G. Tarver, Receiver of Bank of Western Carolina, duly excepted to the report of the Master of Aiken County, and, by consent of counsel representing the petitioner and the receiver, Judge H.F. Rice, of the 2nd Circuit having disqualified himself, the matter came on for a hearing before me as Judge of the adjoining Circuit, at my Chambers in Allendale, S.C. the 30th day of August, 1933.
The petitioner, Horace J. Crouch, was represented at the hearing before me by H.L. O'Bannon, Esq., of Barnwell, and Williams Busbee, Esquires, of Aiken, and T.G. Tarver, Receiver of Bank of Western Carolina, was represented by J.B. Salley, Esq., of Aiken.
After hearing the testimony read over, and full arguments of counsel pro and con, I am convinced that the petitioner's claim is a preferred claim, and that the report of the Master should be confirmed and adopted as a part of the decree of this Court.
There is but one issue in the case, and that is an issue of fact, namely: Was the one-thousand-dollar check which the petitioner mailed to Bank of Western Carolina, at Barnwell, on October 13th, 1931, for collection, or was it for immediate deposit and credit?
The Master stated in his report that all three of the witnesses who testified before him at the reference impressed him as being truthful, and as desiring to throw all possible light upon the issue in controversy. I agree with the Master, as I personally know all these parties, and know them to be upright, truthful and honorable men. My decision of this controversy does not affect the veracity of any witness who testified, but is predicated upon the fact as to which of them may be best calculated to remember the details of the transaction. I concur in the opinion of the Master that Mr. Crouch is best calculated to remember the intimate details of this transaction with the bank, it being a matter personal to him, whereas it was a mere routine transaction handled by the bank officials and which would not be calculated to make a lasting impression upon their minds. Therefore, it is ordered, adjudged and decreed.
That the exceptions to the Master's report be, and they hereby are overruled and dismissed, and the report of the Master be, and the same hereby is, confirmed and made a part of this decree and the judgment of the Court; that judgment be forthwith entered up in the office of the Clerk of Court for Aiken County in favor of petitioner, Horace J. Crouch, and against T.G. Tarver, as Receiver of Bank of Western Carolina, in the sum of Eight Hundred and No/100 ($800.00) Dollars, which judgment is hereby declared to be a preferred claim against said Bank of Western Carolina, and to be paid in full from the assets of said bank in the hands of the receiver, and that the petitioner further have judgment for costs to be taxed up against said receiver.
Messrs. Hendersons Salley, for appellant, cite: As to items sent to bank for collection: 136 S.C. 511; 77 A.L. R., 465; 24 A.L.R., 1148; 85 A.L.R., 362; 166 S.C. 1; 168 S.C. 323; 168 S.C. 331; 170 S.C. 342. Entries: 112 S.C. 230; 166 S.C. 249; 170 S.C. 342. Preference: 165 S.C. 230; 155 S.C. 222.
Messrs. H.L. O'Bannon and Williams Busbee, for respondent, cite: As to appeal: 143 S.C. 325; 141 S.E., 564; 143 S.C. 193; 141 S.E., 362; 144 S.C. 70; 142 S.E., 36; 143 S.C. 417; 141 S.E., 681; 150 S.C. 244; 149 S.C. 338; 150 S.C. 45; 147 S.E., 661; 161 S.C. 249; 159 S.E., 536; 156 S.C. 203; 165 S.C. 137; 163 S.E., 125; 164 S.C. 20; 141 S.C. 145; 168 S.E., 541; 138 S.E., 815. Issue must be raised in Court below: 161 S.C. 515; 159 S.E., 831; 139 S.C. 545; 138 S.E., 354; 155 S.C. 152; 152 S.E., 179; 140 S.C.; 1; 124 S.C. 415; 142 S.C. 284; 140 S.E., 560; 122 S.E., 858; 50 S.C. 514; 121 S.E., 472.
July 9, 1934. The opinion of the Court was delivered by
The only question raised by the exceptions to the Master's report was one of fact, to wit, that the Master erred in finding that the check in question for $1,000.00 was mailed by the respondent Crouch to the Bank of Western Carolina for collection and not for deposit; "the said findings of fact being contrary to the preponderance and overwhelming weight of evidence."
The matter was heard by his Honor, Judge Johnson, who, for the reasons stated by him, confirmed the Master's report. The receiver of the Bank of Western Carolina, as appellant, now asks this Court to reverse the Circuit decree.
In Cohen v. Goldberg, 144 S.C. 70, 142 S.E., 36, 38, the rule is thus stated: "The findings of fact by the Master, concurred in by the Circuit Judge, will be sustained by this Court unless it is shown that they are against the clear preponderance of the evidence or without any evidence to sustain them."
The appellant has failed to convince us that there is substantial merit in his contentions. On the contrary, a reading of the record discloses that there was ample evidence to sustain the conclusions reached by the Court below. The exceptions, therefore, must be overruled.
Questions not raised in the Court below will not be considered. White v. Railway Company, 142 S.C. 284, 140 S.E., 560, 57 A.L.R., 634; Nilson v. Dowling, 161 S.C. 515, 159 S.E., 831.
The judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE BLEASE, MESSRS. JUSTICES CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.