Green v. Spires

March 14, 1905. The opinion of the Court was delivered by These cases were heard together and involve the same question, to wit: Did his Honor, the Circuit Judge, err in ruling that the notes sued upon were non-negotiable? It will only be necessary to set out a copy of one of the notes, which is as follows: "$84.00 Cope, S.C. March 2d 1901. On or before the first day of September, 1901, next, I promise to pay W. H. Hurt or order eighty-four dollars for value received with interest after maturity at eight per cent. per annum. In case this note, or any part of it, is collected through an attorney or by legal proceedings of any kind, I promise to pay all costs and expenses including ten per cent. of amount collected for attorney's fees. Negotiable and payable at Bank of Orangeburg, Orangeburg, S.C.H.S. Spires. (Two cents revenue stamp cancelled.)" The note contemplated expenses of collection other than attorney's fees of ten per cent. on the amount collected. The expenses are not specified and are, therefore, uncertain. Conceding that the note had reference to expenses incurredafter the maturity thereof, it was, nevertheless, non-negotiable. In the case of Bank v. Strother, 28 S.C. 504,517, 6 S.E., 313, the question was whether a provision in the note for the payment "of all counsel fees and expenses in collecting this note, if it is sued or placed in the hands of counsel for collection," destroyed its negotiability. The Court said: "The only uncertainty as to the amount arises after maturity and after the paper would thereby lose its negotiability * * * But inasmuch as the first requisite to the negotiability of the paper is that it should be a note, anything that would deprive it of that character must necessarily deprive it of any negotiability, and as a note must be an obligation for the payment of a certain sum of money if the paper, in addition to an obligation to pay a specified sum of money, contains, also, an obligation to pay another undefined *Page 109 sum of money, even upon a contingency, that, it seems to us, will deprive it of the character of a note, under the statute of Anne." This case has not been overruled, and is conclusive of the question under consideration. The appellant relies upon the recent case of White v.Harris, 69 S.C. 65, in which the note contains the following provision: "We agree in default of payment after maturity to pay ten per cent. for attorney's fees for collection." The Court held this agreement did not destroy the negotiability of the note. It will be observed that in the note just mentioned there was not an agreement to pay undefined expenses. That case is, therefore, not an authority on the question under consideration. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. MR. CHIEF JUSTICE POPE. I concur in the result. The insertion in the notes of the words: "I promise to pay all costs and expenses," takes these cases out of the rule laid down in White v. Harris, 69 S.C. 65, by which case it would otherwise be governed.