Opinion
10505
October 31, 1920.
Before WHALEY, J., County Court, Richland, December, 1919. Affirmed.
Action by Enterprise Bank against Wm. H. Lyles. From judgment for plaintiff, the defendant appeals.
The note dated July 6, 1914, on which suit was brought was as follows:
$1,250. Charleston, S.C. July 6, 1914. On demand after date I promise to pay to the order of Enterprise Bank, Meeting and Market Sts., Charleston, S.C. twelve hundred and fifty dollars, at their banking house, with interest from maturity at 8 per cent. per annum, and also 10 per cent. additional, attorney's fees if placed with attorney for collection. Value received. Wm. H. Lyles. (Address) Columbia, S.C. Indorsed by D. Sam Cox.
Mr. H.N. Edmunds, for appellant, cites: Suit is between maker and payee of note and every defense is available to maker: 8 Cyc. 31; Harp. 201; 126 S.W. 114. Bank records improperly proven: 93 S.C. 580. "Value received" imports a consideration, but maker can show there was none: Dudley L. 30; 38 S.C. 147; 2 McMull. 60; 62 S.C. 46. Failure or want of consideration a good defense against payee: 101 S.C. 507; 65 W. Va. 28; 63 S.E. 138; 65 S.E. 1065. Bank parted with nothing of value: Sec. 29, Neg. Inst. Act.
Messrs. Barron, McKay, Frierson McCants, for respondent. Oral argument.
October 31, 1920. The opinion of the Court was delivered by
The action is upon a negotiable note for $1,250, dated July 6, 1914, due on demand and made by the defendant to the plaintiff, and indorsed by D. Sam Cox. Let the form of the note be reported. The verdict was for the plaintiff.
The defendant has made 15 exceptions which cover 12 pages of the case. Such diffuseness is not to be commended There are practically but two questions in the case, to be presently stated, and they arise out of these circumstances: Cox was about 1910 a client and friend of the defendant, and was operating in real estate about Columbia. He was a large borrower of money, and as such he became indebted to the plaintiff bank in the sum of some $12,000. This indebtedness was so large as to attract the criticism of the State Bank Examiner, so that "at the instance and request of the bank, through its president, the said D. Sam Cox solicited the defendant to make his note in the sum of $1,500, so that his indebtdness might be apparently reduced by that amount."
By the words of the answer such was the genesis of the note sued on, first executed December 6, 1909, and for the purpose suggested.
Both Cox and the defendant were shareholders in a corporation called the "Carolina Investment Company." See Enterprise Bank v. Carolina Investment Company, 112 S.C. 53, 99 S.E. 25. The present contention of fact of the defendant is, and such is the first real issue in the case, that Cox owned certain shares of the Carolina Investment Company's stock, and that the same was pledged by Cox with the plaintiff to secure the payment of the defendant's note and thereby to save the defendant harmless on that score.
The plaintiff denied so much, and claimed that the stock was pledged to secure first a large indebtedness by Cox to the bank on which Lyles was not liable. See Cox v. Bank (April term, 1920), 114 S.C. 693.
The testimony of the witnesses differ as to whether the recitations in the initial note (December 6, 1909) made mention of the collateral. The note was not in evidence. Subsequent renewals of the note which were in evidence contained such recitals. The renewal note sued on has no such recital.
It is a mistake for the appellant to say that the Court excluded the testimony of the defendant which detailed the execution of the initial note and the pledge of the stock to secure the same. Both parties, the plaintiff and the defendant, testified thereabouts and in contradiction one to the other.
The Court did exclude, and that properly, the alleged agreement between the defendant and Cox about the application of the proceeds of the discounted $1,500 note.
And the Court charged the jury explicitly that, if the contention of the defendant before stated was true, then the bank was bound to apply the collateral to the satisfaction of the defendant's note.
The verdict is manifestly a conclusion of the issue against the defendant.
The defendant's answer makes a second issue. It alleges that there was no consideration moving to the defendant for the note.
But the allegations of the first defense are to the effect that the defendant executed the note to give Cox an apparent credit on his indebtedness to the bank; and the testimony of the defendant is: "When I made the note payable to the order of the Enterprise Bank I did not expect myself to get the money, but I made it for the purpose and only for the purpose of substitution to the extent of the note, $1,500, for a part of the note — a part of the notes that then were owed by Cox to the bank."
So much was, of course, a sufficient consideration, to wit, the credit of Cox's debt to the bank by $1,500, to support the defendant's promise to pay.
The other exceptions are minor, and, if sound, would not reverse the judgment based on the two cardinal issues we have stated.
The verdict has done substantial justice, and the judgment is affirmed.
MR. JUSTICE HYDRICK did not sit.