Miller v. Hall , 18 S.C. 141 ( 1882 )

The opinion of the court was delivered by

Mr. Justice Fraser.

On January 1st, 1873, the appellant executed his bond to the respondent, the condition of which was the payment “of one thousand one hundred and ninety-five dollars ($1,195) in five equal annual installments, with interest payable annually from date upon the whole amount unpaid, and at the rate of ten per centum per annum. The first installment payable on the first day of January, one thousand eight hundred and seventy-four, being two hundred and thirty-nine dollars ($239), besides interest, and the last installment of like amount on the first day of January, one thousand eight hundred and seventy-eight, and the same amount, with all interest due, payable on the first day of January of each intervening year.” On the same day and year the said parties entered into a written agreement, under seal, that the respondent would convey to the appellant a certain tract of land upon the payment of the above described bond, which appellant thereby again covenants to pay.

After various payments were made a dispute arose as to some alleged payments and as to the mode of calculating interest on the bond, and this action was brought for specific performance or sale of the land. The burden of proof as to the alleged payments was certainly on the appellant, and this court concurs with the Circuit judge that the weight of evidence is against the credit claimed for sixty dollars, and that it was properly disallowed.

The only other question presented to this court by the appeal is as to the mode of calculating interest, and it is conceded that this must be governed by the contract between the parties.

In the case of Mobley v. Davega, 16 S. C. 73, there was a note “with interest from date at twelve and a half per cent, per annum, interest payable annually,” and the mortgage contained the further words, “till paid,” and the court held that interest was payable annually as well after as before maturity. The words here are “interest payable annually from date upon the whole amount unpaid, at the rate of ten per centum per annum.” The words “till paid,” it is held, will carry the interest agreed on beyond the period of maturity of the payments. The words “whole amount unpaid ” cannot certainly refer to amounts not paid before maturity, because the rate as to this is fixed by the other words in the bond,and'the word “unpaid” is more properly applicable to tbe amounts not paid when due, and which the obligor was then bound to pay, and which he had no right to pay before.

It does not appear to this court that there is any good reason for applying the term “ unpaid ” as used in this bond to any portion of the principal or interest, which, if tendered, the obligee had a right to refuse. The words must have some meaning, and their clear import is that any amounts not paid when due according to the condition of the bond, continues to bear interest at the rate of ten per centum per annum, payable annually, until the bond is paid up. This is the contract of the parties.

The court therefore concurs with the Circuit judge as to the mode of calculating interest on the bond. The reports of the two referees have been recommitted by the Circuit judge to the master “to ascertain and report the amount due upon the bond aforesaid in accordance with said reports as modified” by the Circuit decree, and upon the coming in of the master’s report a final decree can be made on the Circuit.

It is therefore ordered and adjudged that the exceptions be overruled, the judgment of the Circuit Court affirmed, and the appeal dismissed.

Mr. Justice McIver concurred.