Witte v. Weinberg , 37 S.C. 579 ( 1893 )

The opinion of the court was delivered by

Mr. Justice McGowan.

This was an action at law, brought for the recovery of money by Witte Brothers, factors and commission merchants, of Charleston, against Abram Weinberg, of the County of Darlington. The complaint contained three causes of action:

First. Upon a promissory note, of which the following is a copy: “Darlington, S. 0., 23d January, 1888. $1,682.63. Eleven months after date I promise to pay to the order of Witte Brothers, sixteen hundred and eighty-two 63-100 dollars, at their office in Charleston, S. C., with interest from date until paid, value received, at the rate of ten per cent, per annum.

“(Signed) A. Weinberg.”

Second. That during the year 1888, the plaintiffs made advances in money and fertilizers as factors to the defendant at his request, as specified in a “statement thereof hereto annexed, and amounting to the sum of $6,696.17,” together with the further sum of $451.70, interest on the said account at the rate of ten per cent, per annum from the date of advancement, which said rate of interest the said defendant agreed in writing to pay, as follows: “In consideration of advances to be made me by Witte Bros, during the season of 1888, to the amount of seven thousand dollars, which includes the balance which may be due them on the transactions of 1887, for which balance I will give my note when the account is closed, I engage to ship them for sale on a commission of 21 per cent, on all cotton which may come under my control, guaranteeing that an amount not less than 400 bales shall be shipped. I also agree that interest on all advances made me is to be charged at the rate of ten per cent, per annum. Guano not included in this.

“(Signed) A. Weinberg.”

Third. That as above set forth, the defendant agreed to ship to the plaintiffs for sale, on a commission of 2i per cent., all cotton which should come under bis control during the year 1888, and guaranteed that the number of bales of cotton so shipped should not be less than 400. But the defendant made default, and failed to ship 364 bales on account thereof. And they prayed j udgment for $7,508.09, with interest from January 12, 1889, at the rate of ten per cent, per annum.-

The defendant in his answer alleged that the note constituting the plaintiffs’ first cause of action, and the factors’ account constituting the second cause of action, are but portions of a factors’ account, commencing with the beginning of the year 1881 and ending with the commencement of the year 1889, and forming one continuous transaction between plaintiffs and defendant; that plaintiffs were defendant’s factors in the city of Charleston, from whom he, as a country merchant, obtained his supplies and advances, and to whom he shipped his cotton for sale on commission; that from the beginning of the year 1881, there has been one continued and unbroken account; * * * that the note constituting plaintiffs’ first cause of action was executed and received as a mere memorandum and voucher of the amount claimed to be due on said account on January 23, 1888; that the defendant is entitled to have the said account, beginning in 1881 and ending January, 1889, restated, and the balance ascertained, after excluding therefrom all items of interest.

For a counter-claim to plaintiffs’ causes of action, the defendant alleges that on said portion of plaintiffs’ account included in exhibit A, in accordance with the said usurious agreement, plaintiffs charged and the defendant paid plaintiffs’ interest on all advances therein included, at a rate of interest greater than that allowed by law, and that the excess of interest so charged and received over the amount of interest allowed bylaw amounts to the sum of $1,349.94. Wherefore the defendant demands judgment against the plaintiff for the sum of $2,699.88, the same being double the amount of the sum charged and received in excess of interest at the legal rate. For a second counterclaim, the defendant alleges and makes the same plea as to the usurious interest paid on the accounts, which are missing, the plaintiffs having refused to furnish copies of the same.

For a further defence, the defendant says that, under the agreement for advances, the plaintiffs agreed and bound themselves to advance to the defendant the sum of $7,000, exclusive of fertilizers, which plaintiffs agreed to furnish to defendant. The plaintiffs failed to carry out their said.agreement, declined to advance the said sum of $7,000, exclusive of fertilizers, and refused to pay the drafts of defendant for the balance of which he was entitled under said agreement, whereby this defendant sustained damages in the sum of $300, which said amount this defendant claims shall be deducted from whatever may be proved against him, under plaintiffs’ third and last cause of action, &c.

It does not appear in the record how or at whose instance he was appointed, but it does appear that E. O. Woods, Esq., was appointed special referee. He took the testimony, and made a report remarkable for its clearness and fullness. He found as matters of fact:

“First That Abram Weinberg obtained advances from the plaintiffs, Witte Bros., doing business as factors and commission merchants, from the year 1881 to 1888, inclusive, the said defendant making each year a separate and distinct agreement for the advances to be made each year during said period.

' “Second. That there existed between the plaintiffs and the defendant, during the course of their business dealings, no agreement whatever to make advances for a longer period than one year.

“Third. That at the end of each current year balances were struck, and the defendant executed to the plaintiffs his negotiable promissory note in settlement of the balance due to the plaintiffs for said year’s advances, which amount was to form a part of the advances agreed to be made for the year following.

“Fourth. That as above set forth separate and distinct agreements were made for each year for the period above named, and that the defendant, prior to the commencement of this action, paid each and every of the said notes, and that said notes as they were liquidated were returned to the defendant by the plaintiffs, save and except the note for $1,682.63, being the balance due for the year 1887, and which became a part of the advances agreed to be made for the year 1888.

“Fifth. That during the year 1888, the plaintiffs made advances to the defendant in the sum of $6,696.17, and that the balance remaining unpaid, in addition to the note above mentioned, upon his factorage account, the sum of $4,653 for said year; upon which said amount and the amount of said note the defendant agreed in writing to pay interest at the rate of ten per cent, per annum.

“Sixth. That on January 23,1888, the defendant executed and delivered to the plaintiffs an agreement in writing, whereby, in consideration of advances to be made by the plaintiffs to the defendant in the sum of $7,000, the said defendant promised and agreed to ship to the plaintiffs, during the season of 1888, all cotton which should come under defendant’s control during the said year for sale by the plaintiffs, on a commission of 21 per cent., and guaranteed that the number of bales so shipped should not be less than four hundred; and that defendant only shipped thirty-six bales of cotton in pursuance of said agreement.

“Seventh. That on January 23, 1888, the defendant executed and delivered to the plaintiffs his promissory note, whereby he promised to pay, eleven months after date, to the order of plaintiffs, $1,682.63, with interest from date until paid at the rate of ten per cent, per annum, and that no part of said note has been paid.’’

And the said referee held as matter of law, that the plaintiffs were entitled to recover (1) on the note set forth in the first cause of action, $1,682.63, with interest; (2) the additional sum of $4,653.40, the amount due upon the factorage account for the year 1888; and (3) $451.70, interest thereon charged from the date of advancement, as per agreement, at the rate of ten per cent, per annum—aggregating $6,951.08, with interest from January 12, 1889, and $356.92, liquidated damages, for non-shipment of cotton, &c.

To this report the defendant filed numerous exceptions, upon which the case came up for hearing before his honor, Judge Fraser, who substantially concurred with the referee both in his findings of fact and his rulings of the law. From his decree the defendant appeals to this court upon numerous exceptions, which are all printed in the record.'

1 This action for money, certainly at its commencement, was one at law, pure and simple. If it continued to be such, the decree of the Circuit Judge, as to all matters of fact, would stand in the place of a special verdict of the jury, and this court would have no right to review the testimony. Adickes v. Allison & Bratton, 21 S. C., 245. But as the defence here seems to partake somewhat of the nature of a proceeding in equity, asking discovery and to reopen successive accounts, seemingly stated, settled, and paid, we will give him the benefit of having it considered as an equitable defence, in which this court has the jurisdiction to review and reverse the findings of fact. But so considered, the rule is, that this court will not disturb findings of fact by the referee, which have been concurred in by the Circuit Judge, unless the clear result of the testimony points manifestly to a different conclusion, or there is no testimony to support them. As was said in the case of Callum v. Rice, Administrator, 35 S. C., 557: “While this court may review and reverse findings of fact in an equity case, it is perfectly well settled that it will rarely disturb a finding of fact in which the Circuit Judge concurs with the master or referee. Some such rule is well nigh a necessity. There must, in the nature of things, be an end of controversy,” &c.

2 Now, in this case the referee found, and the Circuit Judge concurred with Mm, “that the dealings of these parties, plaintiffs and defendant, were not continuous transactions, but that each year’s contract stood for itself, and in pursuance of a special agreement, though balances were, by special agreement, carried forward upon an adjustment and settlement of the accounts of the year. Their dealings were not continuous, but successive, separate, and distinct. This note for $1,682.63 was given for the balance due at the close of 1887, and was accepted in full settlement and payment of the old accounts, and its payment provided for in the terms of agreement for 1888. It is as much payment as so much money would have been. It is in payment of the debt, and the amount considered as so much money advanced in the special arrangement between the parties for the year 1888,” &c. Under the rule propounded above, we can not say that this finding of facts was erroneous. Whether one security is taken in satisfaction of another, is a question of intention, and the acts of both these parties, and especially of the defendant, in destroying the old notes, and in allowing the notes at the beginning of each year to be put in by the plaintiffs among the advances as their property, show that he thought he owed nothing but the notes. The defendant himself says in the “memorandum” agreement, “for said balance (1887), I will give my note when the account is closed.” Under these circumstances, there was no conceivable reason for keeping them open, and we have no doubt that, at the time, payment and satisfaction was intended by both parties. See Bolt v. Dawkins, 16 S. C., 198; Ex parte Williams, 17 Id., 396.

3 As we are bound to take it as established, that there was no continuous agreement between the parties from the year 1881 to 1887, inclusive, this action for-the dealings of 1888 stands alone; and the next question is, whether there is any inherent usury in the causes of action embraced in the plaintiffs’ complaint. The law declares, that “no greater rate of interest than seven (7) per cent, per annum shall be charged, taken, agreed upon, or allowed upon any contract arising in this State, for the hiring, lending, or use of money or other commodity, except upon written contracts, wherein, by express agreement, a rate of interest, not exceeding ten per cent., may be charged,” &c. (1) The first cause of action is the note of January 23, 1888, for $1,682.60. It conformed to the law in expressly stating, “with interest from date until paid, value received, at the rate of ten per cent, per annum.” We suppose that, considered as money, there was no usury in the note.

4 (2) Then as to the second cause of action, upon the other advances of 1888, made in money. The “memorandum” agreement states as follows: “I also agree that interest on all advances made me is to be charged at the rate of ten per cent.” This would seem, also, to be a compliance with the law. It is, however, suggested that the “memorandum” agreement never took effect, or was annulled by the amendment (“guanos not included in this”) which the defendant made to it before he signed and enclosed it back to the plaintiffs. It is true that the plaintiffs did not understand the guano matter as the defendant did, and they had some correspondence upon thesubject, but the defeudantsigned the paper as amended, and proceeded to take advantage of its provisions by drawing-on the plaintiffs and receiving advances under it to the amount of $6,696.17, only $303.83 short of the whole amount of $7,000 agreed to be advanced, and for that shortage, in our view of the case, he now claims damages. Under these circumstances, surely the defendant can not now be heard to deny that the contract was binding upon him, as to the rate of interest, upon the very advances drawn alone by virtue and authority of that “memorandum” agreement. Estoppel is very well defiued to be “an admission of so conclusive a nature, that the party whom it affects is not permitted to aver against it or to offer evidence to controvert it.” 2 Sm. Lead. Cas., 778; and the Duchess of Kingston's Case; Big. Estop., 556.

5 But, on the assumption that there was a written agreement, it is further urged that, the interest on the advances of 1888 was usurious by reason of the compounding of the interest by the plaintiffs. It does not appear that this point was made in the court below, or that it was considered by the referee or Circuit Judge. But, waiving that, it has not been made to appear that the plaintiffs charged more than at the rate of ten per cent, per annum on the money advances of 1888.¹

6 The third cause of action. As to the liquidated damages „ claimed for the non-delivery of cotton, according to the terms of the agreement, there is no pretence of usury here; ancl we concur with the Circuit Judge, that, according to the authorities, the plaintiffs are entitled t.o recover. See Norwood v. Faulkner, 22 S. C., 371; Williams v. Vance, 9 Id., 374; Devereaux v. Champion Cotton Press, 17 Id., 66.

7 Now, inasmuch as the transactions of 1888 are cut off from the transactions of these parties in the years prior to 1888, and, as we have seen, there being no original usury in these transactions, the final question is, whether the defendant can now recover back by counter-claim in this action any money he may have paid the plaintiffs in excess of the legal interest in the transactions of the different years prior to 1888. It seems to us that the Circuit Judge was right in holding that it could not be done, under the general law as to counter-claims (section 171 of the Code), for the reason that said counter-claim did not arise out of the transaction set forth in the complaint, “or was connected with the subject of the action;” nor under the second section of 1882, which provides that “any person who shall receive as interest, any greater amount than is herein provided for, shall, in addition to the forfeiture herein provided for, forfeit, also, double the sum so received, to be collected by a separate action, or allowed as a counter-claim to any action brought to recover the principal sum.” The expression is a peculiar one, not entirely free from obscurity; but, as we understand it, “the principal sum,” as here used, means the debt out of which the usurious interest sprung. We do not think that this action can properly be considered as brought to recover “the principal sum,” in the sense of the act.

8 The defendant, for a further defence, contends that he has been damaged to the extent of $300, by reason of the failure of the plaintiffs to advance him the whole amount stipulated for by the deficiency of $303.83. The referee reported, “that there is an entire absence of proof to sustain damages in the amount claimed by the defendant, or, indeed, in any sum whatever.” In the account the plaintiffs only charged the amount actually advanced, $6,696.17. There being no evidence upon the subject, there is no way of correcting it, if the court below was in error. We concur upon all 'the questions made with the Circuit Judge.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

1 The point made and hero eonsidered is that a balance was struck on April 15, 1888, and interest charged on such balance to the end of the year ; but the account shows, that while the interest charged- in the account up to April 15, amounted to §113.93, the credits aggregated §549.37. That is to say, that while the advances up to April 15, including the principal of the note, aggregated $7,578.80, the balance carried down as the interest-bearing fund on that day was only §7,143.36.—Reporter.