Greig v. Smith , 29 S.C. 426 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McGowan.

This was an action to foreclose a mortgage. It seems that the defendant, Savannah M. Smith, is a married woman, the wife of W. G. Smith, and being desirous of raising $1,000, she executed a bond and mortgage of a house and lot, her separate property, to the plaintiffs. The money was to be advanced to her as she might need it. The issues of law and fact were referred to the master, W. W. Humphreys, Esq., who, among other things, found the following facts: “That on February 18, 1885, Savannah M. Smith executed her bond to the plaintiffs in the sum of one thousand dollars, to be paid on or before November 15, 1885, with interest from the date thereof, and that in said bond she expressly authorized and empowered W. G. Smith (her husband) to use the said advances in his name and business as the true and lawful attorney of the said Savannah M. Smith; that at the same time the said Savannah M. Smith, to secure the payment of said bond, executed her mortgage covering the premises described in the complaint, to wit, house and lot in Honea Path, which was her separate estate, and therein is recited, ‘This mortgage is given for the purpose of securing, advances to me through my husband, W. G. Smith, and in his own name.’ That from February 18 to July 15, 1885, plaintiff did advance and pay to W. G. Smith, as agent or attorney for his wife, Savannah M. Smith, the sum of $1,037.49, including an item of interest of $36.37. The moneys so advanced, as shown by the evidence, were applied by W. G. Smith to the payment of his own indebtedness,” &e.

It seems that W. G. Smith arranged with the plaintiffs that he would ship them, towards payment of the advances, one hundred bales of cotton, and “in case he failed to ship that amount, to pay a commission of $1.25 for every bale so short, which amount the plaintiffs were authorized to charge against him ; that only 31 bales were shipped, and the proceeds of the sale properly credited; but that the commissions of $1.25 per bale on the shortage of 69 bales, amounting to $86.25, were added to the advances, making the debt of the defendant, Savannah M. Smith, amount at the time of the report to $925.98. The master reports “that Greig & Matthews have charged in their account $36.25 commissions or shortage on failure to ship sixty-nine bales of cotton, and interest on all together, $84.46, and their account shows a balance due thereon of $925.98.” Upon this state of facts the master reported that at that date, February 11, 1887, the debt of the defendant, including $86.25 commissions or liquidated damages charged for shortage in shipping cotton, -was $925.-98; and that to enforce the payment of this sum and interest the plaintiffs were entitled to foreclose their mortgage on the house and lot of the defendant, Savannah M. Smith.

The defendant excepted to this report, and the cause coming on to be heard by Judge Fraser, he concurred with the master in his conclusions both of law and fact, and confirmed the same. From this decree the defendant appeals to this court upon the following exceptions : “I. Because his honor erred in sustaining the master’s report as to his findings and conclusions of law. II. Because he erred as a matter of law in holding that defendant was liable on said note and mortgage. III. Because he erred in holding that the credits or payments made by W. G. Smith, agent, did not operate as a legal satisfaction of the bond and mortgage. IV. Because his honor erred as a matter of law in finding that the $86.25 commissions on shortage on shipment of 69 bales of cotton, was an advancement to and embraced in the contract of defendant, and in making her liable therefor.”

The papers show, the proof confirms, and the master and judge found that not only the contract, but the bond and mortgage also, were made and executed by the defendant, Savannah M. Smith, for and on behalf of herself alone ; and that her husband, W. G. Smith, had no connection whatever with the transaction, except as “her true and lawful attorney.” Under these circumstances there can be no doubt that the defendant, Savannah M. Smith, although a married woman, had the same power to contract with reference to her separate estate “as if she "were unmarried.” See the recent cases of Fant v. Brown (post, p. ; 6 S. E. Rep., 937), and Booker v. Wingo (ante 116; 7 S. E. Rep., 49).

The third exception complains that the credits or payments made by the husband, W. G. Smith, were not allowed to operate as a legal satisfaction of the bond and mortgage. There being no special instruction's on the subject, the plaintiffs had the right to apply these credits so as “to leave the balance at the foot of the account to constitute the mortgage debt.” Williams & Co. v. Vance & Moseley, 9 S. C., 349, and the authorities there cited.

The fourth exception alleges error in the ruling “that the $86.25, commissions or shortage in shipment of sixty-nine bales of cotton was an ‘advancement’ to, and embraced in, the contract of defendant, and in making her liable therefor.” As we understand it, a married woman is only liable for what is clearly her own debt, contracted freely and voluntarily for purposes of her own, and in reference to her separate estate. It appears here that the bond states, “W. G. Smith is empowered and authorized to use the said advances in his own name and business as her true and lawful attorney ;” and that the mortgage says, “This mortgage is given for the purpose of securing advances to me, through my husband (agent), W. G. Smith, and in his own name.” It thus appears that the wife did not agree to be responsible for anything but “advances;” that the husband’s agency ivas only as to the “advances,” and that the mortgage was only given to secure “the advances” through her husband. It seems to us that the contract of the parties contemplated “advances” in money only; and that what is called commissions or liquidated damages for the non-delivery of the sixty-nine bales of cotton was not an “advance,” and should not have been charged against the defendant as a part of the debt covered by the mortgage. It. really was nothing more than a debt of her husband.

The judgment of this court is, that the judgment of the Circuit Court, with the modification herein indicated as to the alleged shortage in the delivery of cotton, be affirmed.