Opinion
18731
November 30, 1967.
Messrs. Robert L. Stoddard and Preston B. Mayson, of Spartanburg, for Appellant, cite: As to error on part of trial Judge in finding that the defendant, as an insurance Agent, was entitled to offset unpaid commissions earned prior to receivership, against unremitted premiums which the defendant bank, as Agent, had collected prior to receivership: 175 S.C. 18, 177 S.E. 895; 146 S.C. 167, 143 S.E. 646; 60 A.L.R. 580; 6 F.2d 713; 167 U.S. 344, 42 L.Ed. 192; 268 U.S. 234, 69 L.Ed. 931; 45 Am.Jur., Receivers, Secs. 141, 142; 145 S.C. 11; 136 S.C. 514, 134 S.E. 510; 114 So.2d 524; 344 S.W.2d 435, 162 Tex. 42; 147 F. Supp. 910; 283 S.W.2d 95; 302 S.W.2d 263; 306 S.W.2d 158; 359 S.W.2d 679; 262 N.W. 312, 272 Mich. 606; 135 N.Y.S.2d 865, aff., 141 N.Y.S. 509; 120 A.2d 1; 65 Pa. Supp. 208; 106 A. 246, 263 Pa. 216; 20 Am. Jur.2d Counterclaim, Recoupment, etc., Pars. 23, 25; 44 F.2d 663.
Messrs. Holcombe, Bomar Cureton, of Spartanburg, for Respondent, cite: As to rulings of the Trial Court, to which no exceptions are taken, not being subject to review by the Supreme Court: 201 S.C. 32; 226 S.C. 257, 84 S.E.2d 857, 45 A.L.R.2d 1070; 230 S.C. 201, 95 S.E. 167; 245 S.C. 25, 138 S.E.2d 417. As to a ruling by the Circuit Court, from which no appeal is taken, becoming the law of the case: 186 S.C. 463, 196 S.E. 188; 205 S.C. 469, 32 S.E.2d 654; 212 S.C. 496, 48 S.E.2d 329; 215 S.C. 103, 54 S.E.2d 529; 231 S.C. 14, 97 S.E.2d 88; 232 S.C. 70, 100 S.E.2d 825; 236 S.C. 355, 114 S.E.2d 502; 243 S.C. 257, 133 S.E.2d 788; 247 S.C. 579, 148 S.E.2d 687. As to the Courts not considering moot questions: 95 S.C. 219, 78 S.E. 712; 196 S.C. 339, 13 S.E.2d 440; 241 S.C. 104, 127 S.E.2d 202; 247 S.C. 164, 146 S.E.2d 608. As to in equitable actions, the appellate court will not disturb findings of fact by the Master, concurred in by the Circuit Judge, unless they are against the clear preponderance of the evidence or are without any supporting evidence: 215 S.C. 530, 56 S.E.2d 343; 218 S.C. 500, 63 S.E.2d 459; 241 S.C. 129, 127 S.E.2d 196; 242 S.C. 292, 130 S.E.2d 903; 244 S.C. 588, 138 S.E.2d 38; 228 S.C. 149, 89 S.E.2d 225; 239 S.C. 109, 121 S.E.2d 427. As to the trial Judge properly holding that the Respondent was entitled to the right of offset: 222 S.C. 242, 72 S.E.2d 193; 223 S.C. 9, 73 S.E.2d 845; 243 S.C. 380, 134 S.E.2d 214; 136 S.C. 111, 134 S.E. 275; 136 S.C. 179, 134 S.E. 285; 199 S.C. 23, 18 S.E.2d 592.
November 30, 1967.
In this action on contract for a money judgment, the defendant pled total failure of consideration and, alternatively, pled an offset. The Circuit Court sustained the defense of failure of consideration, holding that the defendant was not indebted to plaintiff, and sustained the alternative plea of offset. The plaintiff has appealed on the sole ground that the Court erred in sustaining the alternative plea, leaving unchallenged the Court's finding that the defendant was not indebted to plaintiff under the contract. Therefore, there is no debt against which an offset could be allowed, and the question sought to be raised by the appeal has become moot.
Appeal dismissed.