Haile v. Morgan & Co. , 25 S.C. 601 ( 1886 )

Defendants agreed to sell guano for Rasin & Co. on commission, taking cotton option notes payable November 1, which were to be sent to Rasin & Co.' by May 15 of the same year, 1881, guaranteeing said notes to the extent of ¿heir commissions. The agreement contained this further stipulation, as written by Rasin & Co. to the defendants: “If for any cause or reason full and complete settlement, in accordance with the stipulations herein-before contained, should not be made by you to us or to our order before the 1st day of June, 1881, then or after that, provided only that we should request it, but not otherwise, you must promptly, upon such request from us so to do, give to us or to our order your own note, properly made out upon our regular form of cotton option note, for such amount or balance as may be unsettled at the time that we make such request.”

November 29, 1886. J. S. B. Thomson, for appellant. Bobo $ Carlisle, contra.

On June 7, 1881, defendants gave to Rasin & Co. their cotton option note for $1,636.80, payable November 1, “with interest from maturity, if not paid at maturity, also ten per cent, counsel fees and other expenses of collecting, if sued.” In the summer of 1881, this note was transferred to one I., who afterwards transferred it to plaintiff. The action was on this note.

The Circuit Judge (Wallace) admitted in evidence letters from Rasin & Co. to defendants, written in October and December, 1881, in which they claimed the notes taken' by defendants for guano sold. Under the charge of the Circuit Judge, the jury found for plaintiff only to the extent of defendants’ commissions, $113.44. Held,—

1. That the letters written by Rasin & Co. after their transfer of the note sued on was not competent evidence against plaintiff.

2. That the paper sued on lacked “at least one of the essential' features of” a note.

3. That the instrument of June 7, 1881, had a sufficient com-sideratiou in the stipulations of the original agreement, under the express terms of which it was given ; and that plaintiff was entitled to recover the amount called for by the instrument of June 7, together with the counsel fees therein provided.

Judgment reversed.

OPINION by

Mr. Justioe MoIver,