Bank of Oxford v. Bobbitt

MERRIMON, C. J., dissenting. We think the court below misapprehended the purpose (534) of the several covenants upon which this action is brought and failed to interpret them correctly. They were independent covenants collateral to the agreement between the plaintiff bank and the defendants, Bobbitt Hines, and were intended to secure the former in the payment of any balance that might be ascertained to be due to it for advancements which it might make from time to time to the latter in carrying on their business under an agreement which was to terminate on 31 October, 1886, (unless discontinued before that time upon notice as stipulated) with interest thereafter on such balance at the rate of 8 per cent per annum. The balance found to be due from the firm of Bobbit Hines to the plaintiff on 31 October, 1886, as reported by the referee and affirmed by the court, was $5,031.82, which, as appears from the credits, was subsequently reduced to $4,043.73, 1 September, 1887, and the plaintiff insists that the covenants were to secure this balance, with interest thereon at the rate of 8 per cent per annum till paid, and that it is entitled to judgment accordingly. The defendants, on the contrary, insist that the plaintiff exacted and received usury from the firm of Bobbitt Hines, and thereby forfeited the interest on this balance, and, in accordance with this contention, and upon motion of counsel, for defendants, the court adjudged "that the plaintiff recover from the defendants no interest on the balance due from 31 October, 1886, until the first of this term (21 April, 1890)." In this we think his Honor erred. Whether the balance ($4,043.73) found to be due was a correct balance, or whether it embraced any usurious interest or other item improperly charged, is not a question for our consideration, as that is the balance found to be due by the referee (535) and affirmed by the court below, from which there was no appeal by the defendants; and the sole question presented by the plaintiff's appeal is: Was the plaintiff entitled to interest at 8 per centum on this balance under the covenants executed by the defendants to secure the same? *Page 375 It is too well settled to need citation of authority that, except as to questions of jurisdiction and the sufficiency of the complaint to constitute a cause of action, this Court will only consider questions presented by the appeal of the appellant, and even if it were agreed that exceptions taken and errors alleged by the appellee should be heard and passed upon with the appellant's case on appeal, it could not be done without a departure from the settled practice of the Court. If both parties appeal, the appeal of one will not bring up the appeal of the other, and this rule cannot be waived by consent. Perry v. Adams, 96 N.C. 347, and cases cited. In the present case the defendants' exceptions are not before us. The covenants stipulate that the obligors shall secure the Bank of Oxford in the advances made to Bobbitt Hines, including "all amounts drawn by them for any purpose whatever." The fair and reasonable, in fact, the only legal interpretation that can be placed upon this is, that they shall secure the payment of all amounts ascertained to be legally due, and if any usurious advances, or advances upon any other illegal or improper consideration, were made, not only the defendants Bobbitt Hines, but the sureties on the collateral covenants to secure the payment of any balance that might be ascertained, upon settlement, to be due the plaintiff, had a right to have any illegal item or items stricken from the account which would reduce, pro tanto, the balance; but that balance, when ascertained, would, under the agreement, bear interest from 31 October, 1886, at 8 per cent. It is not pretended that the covenant contained any contract (536) or stipulation for the payment of a greater rate of interest than is allowed by law. On the contrary, it is found that there was no such stipulation or agreement; but it is said that the bank charged Bobbitt Hines usurious interest on advancements made to them, and thereby forfeited all interest on the balance secured by the covenant. We are not called upon in the present case to say how it would be if the balance was increased by usurious interest; but even if it were so, and the referee and the court below erred in finding that there was a balance due of $4,043.73, the question is not presented in this appeal. If the court below failed or refused to strike any usurious or other illegal item from the account, whereby the balance due would be diminished, the defendants should have excepted and appealed, but they seem to have been satisfied with the judgment — at all events, failed to take and perfect an appeal therefrom, and we can only consider the error assigned by the appellant. The defendants rely upon Burwell v. Burgwyn, 100 N.C. 389. In that case there was an usurious contract, as alleged and found, and the question was presented by the appeal. In the present case, we fail to see, in the covenants, any contract for the payment of usury; in fact, it is *Page 376 found there was none; they only stipulate for the payment of the balance ascertained to be due, with interest thereon at 8 per cent till paid. The judge below had the power to review the findings of fact, as well as the conclusions of law, of the referee and to overrule, change, alter or modify them as he might think just and proper; but the findings of fact, if upon sufficient and competent evidence, are conclusive upon this Court, which has no control over the facts, and can only review the question of law presented by the appeal. The balance found to be due from Bobbitt Hines to the plaintiff, after deducting payment made since 31 October, 1886, was $4,043.73, and this sum is accepted, without appeal, as the correct balance, (537) and by the clear, explicit and unmistakable language of the covenants, bears interest at the rate of 8 per centum per annum till paid, and, without passing upon the plaintiff's exceptions seriatim, or considering in detail the points presented by the learned counsel by whom they were forcibly and ably pressed upon our attention, we think the court below erred in construing the covenants, and denying to the plaintiff interest at 8 per cent on the balance ascertained to be due, as stipulated therein. This interest should be on $4,043.73 from 1 September, 1887, the balance having been reduced by credits subsequent to 31 October, 1886, to that amount on said day, and the judgment below will be made to conform to this opinion.