Opinion
8190
April 23, 1912.
Before DeVORE, J., Sumter, March, 1911. Affirmed, nisi.
Action by H.B. Tuller against C.L. McLeod. Plaintiff appeals.
Mr. L.D. Jennings, for appellant, cites: As to construction of conditions: 89 S.C. 81; 7 Cyc. 10-1; 85 S.C. 196. Attorney's fees, loss of time, expenses, etc., should not be considered in awarding actual damages: 39 S.C. 465; 31 S.C. 49; 12 Rich. 292; 3 Strob. 373; 40 S.C. 528; 51 S.C. 484; 65 S.C. 506.
Messrs. Lee Moise, contra, cite: As to construction of condition as to removal: 4 Cyc. 437; 43 S.C. 203; 74 S.C. 453. Answer sets out special damages: 65 S.C. 506; 31 S.C. 52. Nominal damages may be recovered without proof of actual: 34 Cyc. 1560.
April 23, 1912. The opinion of the Court was delivered by
The defendant, on March 29, 1910, purchased from the plaintiff two mules, and for $360.18 of the purchase money gave him a note secured by a mortgage of the mules. The mortgage contained the following stipulation: "And provided further, that said mortgagor shall retain possession of said goods and chattels until default be made in the payment of said note, but if the same is not paid when due, or if before the said note is due, the said mortgagor shall attempt to make way with or remove said goods and chattels, or any part thereof, from the place where they now are, then, and in either event, the said mortgagee, or his agent, shall have the right, without suit or process, to take possession of said goods and chattels, wherever they may be found and may sell the same or as much as may be necessary, at public auction for cash, after giving notice by advertisement ten days, and shall apply the proceeds of said sale to the discharge of said debt, interest and expenses, and pay any surplus to said mortgagor and his assigns."
Both the plaintiff and the defendant were residents of the town of Bennettsville. Plaintiff's place of business was in that town, but the defendant was engaged in the logging business in different parts of the State. In April, 1910, the defendant, having occasion to go to Sumter to attend the trial of a cause in which he was interested as a party, drove the mules to that place. Thereupon Hardinson, an agent of the plaintiff, went to Sumter, and made a demand for the possession of the mules on the ground that the defendant had breached the condition of the mortgage against removal of the mules by driving them out of Marlboro county. Upon refusal of the demand, the plaintiff brought this action in claim and delivery. The mules were seized by the sheriff on Monday, and the defendant on the following Wednesday gave the necessary undertaking and regained possession. In his answer the defendant denied that the condition of the mortgage had been broken, and set up a counterclaim alleging that the plaintiff had wilfully, wantonly and maliciously brought the action and had taken the mules from him in violation of his rights. On the trial the verdict was in favor of the defendant for the possession of the mules, and for twenty-five dollars actual damages, and one hundred and fifty dollars punitive damages.
The presiding Judge instructed the jury that the condition against removal contained in the mortgage would not be broken by any removal of the property from one place to another unless the removal by the mortgagor was "with the view of taking it out of the reach of the party to whom he mortgaged to keep him from getting it." This, we think, was error. The condition of the mortgage, "that if before the said note is due the said mortgagor shall attempt to make way with or remove said goods and chattels or any part thereof from the place where they now are," cannot be construed literally, for such construction would have forbidden the removal of the mules from the stable where they then were, or driving them from place to place in the ordinary use for which they were purchased. The reasonable construction is that the provision was intended to protect the mortgagee against any removal of the mules which he could fairly regard an impairment of his security. This was the construction of a like provision on which the case of Marshall Springs Co. v. Smith, 85 S.C. 196, 67 S.E. 129, was decided. There the mortgagee obtained on the mortgage supplies to be used in the cultivation of a tract of land known as the Jones place. The mortgagor thereafter moved away from the Jones place, taking the mules with him. This was a removal which the mortgagee had a right to regard an impairment of his security, since it was accompanied by a complete change in the mortgagor's business.
But we do not think there should be a new trial for this error of the Circuit Judge, because there is not the slightest evidence that the defendant did anything more than use the mules in the ordinary course of his business, or that the plaintiff had any reason to suppose that driving the mules to Sumter on an ordinary business trip would have any effect on his security. This being so, the Court will not order a new trial. "This Court should not order a new trial where from an examination of the record it has no doubt the verdict of any fair jury would have been the same, even if no error had been committed. In such a case the errors should be regarded not prejudicial." Edgefield Manufacturing Co. v. Maryland Casualty Co., 78 S.C. 73, 58 S.E. 969.
The trial Court was also in error in allowing the defendant to prove as actual damages his personal expenses at Sumter, and his traveling expenses incurred in the effort to procure sureties on his undertaking. These were special damages not alleged in the complaint, and were, therefore, not recoverable. Sonneborn v. Southern Ry. Co., 65 S.C. 502, 44 S.E. 77. The only admissible item of actual damages proved was $6.75, paid by defendant for feed of the mules after they were seized. For this error there must be a new trial unless the defendant will remit all the actual damages included in the judgment except $6.75.
The judgment of this Court is that the judgment of the Circuit Court be affirmed on condition that the defendant shall remit thereon, in writing, within thirty days, after the filing of the remittitur $18.75 of the actual damages recovered, and that if he shall fail to do so that the cause be remanded for a new trial.
Only MESSRS. CHIEF JUSTICE GARY and JUSTICE HYDRICK participate in this opinion and concur.