Gibbes MacHinery Co. v. Hamilton

The opinion of the Court, after reciting the foregoing decree, was delivered by Mr. Justice Fraser. 1 I. There are twenty-three exceptions; all but three complain of error in the Circuit Judge in sustaining the findings of the referee. The appellant has failed to convince this Court that the preponderance of the evidence is against the concurrent findings of the referee and Circuit Judge, and the exceptions that complain of the confirmation of the referee’s report cannot be sustained. Besides, there is in this case a cardinal fact upon which the determination of this case must turn against the appellant. The appellant himself testified as follows: “Mr. Varn wrote me that if I didn’t pay the debt, or part of it, he would foreclose mortgage. In January, 1908, Mr. Varn came to me and told me he would collect the debt. I refused to pay the debt until he fixed the machinery to do the work as he agreed to do. He came .back first of March and had got very kind. Told me he had treated me wrong with the machinery, but that he would do what was right. That he would fix that machinery just as he had contracted to do in 1907, and gave me to March 1, 1909, to pay for it, if I would renew the mortgage, and that he would fix it. If he didn’t do it it would not cost me one cent, just as he had promised. Fie said he made these statements because he was tied up and wanted to borrow some money, or at least to pay for some machinery. I promised if he would do that I would renew the mortgage, but he must give me a contract. He said I had one, and I told him I didn’t. Fie saw me later, said he had the paper ready. I started towards Mr. Warren’s and he said hold on, they are not over there, they are not over there, they are over at Mr. Smith’s, the papers. I went to Mr. Smith’s office. Mr. Smith read the paper. I told Mr. Varn I would sign, but unless he fixed that machinery I would never pay for it until the laws of my *64 country made me do it. That was about the 30th day of March.” 2, 3 There is a wise and just principle of equity that when one of two innocent persons must suffer loss, then the loss must fall on him who has made the loss possible. Here the note and mortgage sued upon were made in order to enable Varn Brothers to use them in their business; to assign them and use as a means of' credit, and if, as the appellant testifies, he then knew of the defects and trusted to the verbal promise of Varn and put in his hands the note and mortgage to enable him to get the respondent’s property, then equity required the appellant to bear the loss. There was no evidence that the respondent had any notice of defects in the machinery or was guilty of fraud. See Chambers v. Bookman, 67 S. C. 432, 46 S. E. 39. II.Exception 10. “Because of error of his Honor, the presiding Judge, in sustaining the referee in not finding in favor of this defendant for his counterclaim, this defendant having alleged in his answer a counterclaim against plaintiff for one thousand dollars damage, which plaintiff failed to controvert by any pleadings, and this defendant having offered testimony to prove said counterclaim.” [4] This exception is overruled. There is no evidence of fraud on the part of the respondent, III.Exception 18. “Because of error of his Honor, the presiding Judge, in sustaining the referee in holding that the amount of the debt, with interest and attorney’s fees, is $852.70, and that plaintiff is entitled to a decree of foreclosure in this amount.” 5, 6 It was error to calculate interest on the note after maturity at eight per cent. IV.Exception 19. “Because of circumstances of this case that practically forced this defendant to submit to the trial of this case before this referee, he having been objectionable to him from the beginning.” *65 7 This exception is overruled. The record does not show that any grounds of objection to the referee were stated and there is no ground upon which this Court can base a finding of error. The judgment of this Court is, that a new trial shall be had, unless the respondent shall remit on the record the difference between interest at seven and interest at eight per cent, within ten days after notice of the filing of the remittitur in the Circuit Court. Footnotes [1] Footnote.—See Lites v. Addison, 27 S. C. 226, 3 S. C. 214; Carter Merchandise Co. v. Dickson, 39 S. C. 433, 17 S. E. 996, and note in 50 L. R. A. (N. S.) 1023 as to estoppel to contest commercial paper by representation to prospective purchasers.