Heyward v. Walker , 1876 S.C. LEXIS 4 ( 1876 )

The opinion of the Court was delivered by

Moses, C. J.

A sufficient consideration to sustain the agreement between Mr. Richards and Colonel Heyward is found in the fact and circumstances which induced it. The one was led, on the faith of the promise of the other, to part with the security which he could have subjected to the payment of the debt of his principal, on which he was surety, the effect of which was a prejudice to his own interest. The inquiry whether notes of the Confederate government are to be treated as money and subject to the rules which apply to a tender of it, is not pertinent to the case before us. No matter in what light such currency is to be regarded, the parties by their contract stipulated that through the sale of the mortgaged premises it would be accepted in payment of the debt due to Colonel Heyward, and they are bound by their agreement.

If the bond or mortgage could only have been discharged by an entry of satisfaction on their face, the appellants might possibly claim that the omission of the payment was not the fault of Mr. Richards. A simple receipt, however, for the amount due would have as fully protected the obligors of the bond and the purchaser of- the premises as the most formal entry of satisfaction which could have been rendered on both instruments. Mr. Bee, the agent of Colonel Heyward, held all his bonds and mortgages, signed in blank, so that on payment satisfaction could at once be entered. By some accident this bond and mortgage had not been so signed. The agreement of Colonel Heyward and the willingness both of himself and agent to accept Confederate notes are not denied; but it appears by the report of the Referee that Mr. Richards said to the latter, on a casual meeting, “ that he was ready to pay as soon as the mortgage properly satisfied was ready to be delivered.” He thus made the entry of satisfaction on the mortgage a condition precedent to the payment, and when informed that it had not been signed, so that satisfaction could be acknowledged, he does not appear to have made any further exertion, either by offering payment or taking any step in the lifetime of Colonel Heyward to have the business concluded, though after his death he did express to his executor his readiness to pay in Confederate money, which the executor did not feel authorized then to accept.

Mr. Richards, to the filing of the complaint by the respondents on the 27th of March, 1872, resorted to no proceeding to have the contract between himself and Colonel Heyward executed according to its terms. Both parties are entirely innocent of any intentional wrong, and in this condition the loss shoüld fall upon the one who has caused it by his want of activity in executing an agreement in the result of which he had so large an interest. His laches is not to operate to his own benefit and to the prejudice of the other party, who was not bound to deliver the bond and mortgage satisfied until the currency which he had agreed to accept was actually paid. If the questions were to be determined only by the effect of the notice of the executor that Confederate notes would not be received by him in payment, the principles applicable might be different; but the money which, according to the report, Mr. Richards received from the purchaser, Mr. Seigling, in May, 1863, should have been offered in payment to Colonel Heyward, or some cause shown which would have excused Mr. Richards from the duty which, in our judgment, the agreement imposed upon him. Not a single step was taken to that end. So far from Mr. Richards regarding it as the money of Colonel Heyward, he deposited it in the bank to his own general credit, subject to his own contract, and from the day he received it neither Colonel Heyward nor his executors were at liberty in any way to interfere with it by reason of any act on the part of Mr. Richards showing a devotion of it to the agreement on which he now refuses to discharge him from the payment of the bond.

The motion is dismissed.

Willard, A. J., and Wright, A. J., concurred.