Kitchin v. Grandy

Smith, C. J.,

(after stating the case.) While the exceptions are very many in number, there are but few rulings involved which we are called on to consider.

1. The appellants’ objection to the ruling that sustains the plaintiff’s first exception to the referee’s first report in reference to the time of transmitting, with the guarantee, the paper of the defendants’ attorney, setting out the terms on which it is given, involves a matter of fact and is not subject to review in this Court, when there is any evidence to support the finding.

2. The second has reference to the sustaining the plaintiff’s exception to the finding that the defendants are entitled to be paid out of the proceeds of sale of the land, not only $1,457.22, the amount advanced, but also the sum of $324.33 paid for the note held by Lawrence.

This raises an inquiry into the effect upon the liability incurred under the plaintiff’s guarantee by the contemporaneous transmission to the defendants of the verbal- communication of plaintiff to their attorney reduced to writing, and forwarded to them.

We think, most manifestly, the latter paper must be considered between the contracting parties as a qualification or condition of the plaintiff’s undertaking to protect the defendants from any claim upon the crops growing out of the incumbrance upon the farm, or interference with Spruill while making them.

As Spruill had assigned, subordinate to the assignment to the appellants, his interest in the notes held by them, the plaintiff, in waiving any claim to priority in the crops and insuring Spruill uninterrupted cultivation in that communication to them, uses these words:

“ I have just agreed with Spruill that he is to convey to me all his interest in the notes you have, and all his crops subject to Grandy’s lien of $1,500, and $100 more, if I say so. Now, if this is satisfactory to you, I will guarantee that Spruill shall not be disturbed, nor his crop, until Grandy gets his money out of the crops and notes, at which time Grandy is to deliver the notes to m'e. I will stop the sale or buy, if Mrs. Neems should attempt to sell."

The guarantee was accepted on these terms, and most clearly it limits the claim of the defendant upon the notes and crops to $1,500, and • excludes all above that sum. It cannot be necessary to refer to authority for the proposition that papers executed at the same time or acted upon conjointly, together constitute the contract, and ascertain the respective relations and obligations of the parties to it. These exceptions being overruled, the defendants file others to the amended report:

1. For that the referee does not find the appellants to be entitled to the unpaid residue of the purchase money.

2. Nor entitled to recover of the plaintiff the amount ($324.88) paid to Lawrence, but only ($164.84) part thereof.

3. Nor to recover of plaintiff a larger sum than $164.84.

To the rulings of the Judge they excepted also:

For that he disallowed the sum of $165, claimed for the deficient consignments of cotton ;

For that he denies their right to the sum found due in the first report, to-wit, $265.64;

For that he does not allow them the sum ($164.84) ascertained to be due in the reformed report; and,

For that he adjudges due plaintiff’s $26.43, paid the defendants out of the sale above, what was due them, and awards costs of suit against them.

While, in our opinion, the notes given on the purchase by-Edmondson are, under the terms of the trust deed, whether due or not, entitled as such to share in the proceeds of the sale, the deed so directing, and the payment to Edmondson of any excess, it is evident this latter was not intended to exclude such as were not matured, and thus to withdraw the security from them, and such is the meaning of the language used; yet the sum to be received by the defendants was, under their contract with the plaintiff, not to exceed $1,500, the excess from these pledged securities belonging to him.

The item of $165, claimed for damages for the deficient cotton, while not allowable to affect the plaintiff’s rights, was, we think, under the findings, a proper charge against Spruill.

In Arrington v. Goodrich, 95 N. C., 462, where the point of the usurious character of such a provision in a mortgage deed came before the Court, but was not necessary to be passed on in determining the appeal, as it is not now, since we do not know that a usurious taint is, by the law of Virginia, thus imparted to the contract, and the debtor does not controvert his liability upon such ground, and for these reasons we pass it by without an expression of opinion as to the effect of such a provision under our law. Whether in law it must be declared to be usurious in the absence of other evidence of illegal intent as a means of evading the condemnation of the law relating to the taking of usurious interest, \we shall not undertake to decide.

But the ruling of the Court is, that this sum is not a just charge against the plaintiff, inasmuch as the four notes, not to exceed $1,500, were alone to be provided for, and subject to the lien of that sum only, were to belong to the plaintiff. The appellants having received in excess of what those notes are entitled to, out of the securities provided for their discharge, the sum of $26.43, it is correctly ruled that they are liable therefor to him.

It must be declared there is no error in the ruling complained of by the appellant, and the judgment is affirmed.

Affirmed.