Sanders v. Bagwell

The opinion of the court was delivered by Mr. Justice Pope. In the thirty-second volume of the South Carolina Beports, at pages 238 to 243 inclusive, may be found the report of the first trial of this case, and the judgment of this court on the appeal therein. Briefly, the plaintiff complained on a note for $440, executed under seal by Wash. Poole, and W. H. Bagwell as his surety. There had been an addendum thereto, signed by Poole alone, whereby the interest to be [laid was fixed at eight per cent, per annum, and the fact of the alteration was set out in the defendant’s answer. At the hearing the Circuit Judge held thatsuch addendum was a, nudum pactum, and did not influence Bagwell’s (the surety’s) liability thereon. On appeal, this court held that such addendum became a part of the contract evidenced by the note, as much so as if the same had been interlined therein, and reversed the judgment of the Circuit Court in favor of the plaintiff. The parties being already at issue under the original pleads ings, the cause came on for a trial before Judge Kershaw anda jury, on the 17th August, 1891, at a regular term of the Court of Common Pleas for Spartanburg, when the plaintiff obtained a verdict for $811.90, and judgment being entered thereon, an appeal was taken therefrom on many and various grounds. 1 The first objection of appellant, in the logical order, relates to the fact of any trial at all being had of the action after the judgment of this court reversing the first trial, béing the 8th ground of appeal. The effect of the judgment of this court simply reversing the first judgment in the Circuit Court placed the parties litigant in the same plight and condition they had been in before any trial of the action, with this restriction—that they could not again litigate the same matters that had been passed upon by this court, as evidenced by the opinion of the court accompanying its judgment. It may be as well to state in this connection, in answer to so much of the respondent’s position, “that the judgment of the Supreme Court on the first appeal was neither pleaded nor put in evidence,” that it was not necessary to either plead or put such judgment in evidence. All parties were bound at their peril to give such judgment, in the identical action, between the [151] same parties, with the same attorneys, instant and continued recognition and obedience. There was no error here. The next question suggested by the appeal here relates to the admission of the testimony of the witness Boss: 2 “a. In overruling defendant’s objection to Boss’s testimony as to what took place between him and W. H. Bagwell.” It seems that Bagwell was Poole’s surety; that when Boss, as the agent of his mother-in-law, Allie Lipscomb, brought the $440 of her money to Spartanburg C. H. to lend to Wash. Poole, with Bagwell as his surety, he was directed by Mrs. Lipscomb to loan them the money at eight per cent, interest, but that when he met Poole and Bagwell, the note offered by them was silent as to the rate of interest, and that he declined to receive the note or pay over the money, calling their attention to this defect in the note. Poole at once said, “We can soon fix that;” and thereupon the three men walked into Maj. Lee’s office, and, in the presence of all three, Poole wrote as the addendum to the note: “The above note is to be accounted for with interest at eight per cent, per annum. Wash. Poole.” Mrs. Lipscomb is dead, and the plaintiff, G. P. Sanders, is the sole executor of her will. W. H. Bagwell is dead, and S. M. Bagwell, the defendant, is the administrator of his estate. The ground advanced at the trial, why Boss should not testify, was because “he was interested in the event of the suit.” Upon an examination of the will and the codicil thereto of Mrs. Allie Lipscomb, it was discovered that the witness was not pecuniarily interested in her estate, although witness’s wife and children were so interested. This was the conclusion of the Circuit Judge, reached after an inspection of the will and codicil. The appellant does not embrace copies of those papers in the “Case” here. We are powerless to pass upon the papers in question. The conclusion of the Circuit Judge is assumed to be correct; this course is necessary because of appellant’s failure in his “Case.” And we must, therefore, overrule this objection. [151] “b. [In ruling- that the following testimony was competent:] If he (Bagwell) had objected, would you have paid the money?” To see the pertinency of this testimony, it will be neees [152] sary to recall some of the facts. Boss, as- the agent, had instructions to loan his principal’s money to Pool, with Bagwell as surety; the note, as offered, specifying no rate of interest, was rejected by the agent on that account-. Then Poole said: “We will fix that.” All three were together when the addendum was made to the note by Poole; Bagwell said nothing. The .witness was then asked if Bagwell had objected to this change, “would you have paid the money?” The witness said he would not. The objection was made, as appears by the “Case,” after the witness had answered the question. No motion was made to expunge the testimony. The judge made no ruling, and if we were left to conjecture, we might suppose the objection was not pressed ; but we think that the “Case” itself discloses that the Circuit Judge protected the defendant from any ill results that might flow from this answer of the witness Boss, by ruling thus: “IJpon that point, all that is proper is to show what the parties did, and I do not think it is necessary that you should bring out his impressions, because his impressions are not to bind the jury in this case at all.” 4 “c. In himself (the judge) asking the witness what his instructions from Mrs. Lipscomb were.” Beally, we are at a loss to appreciate the force of this implied criticism of the conduct of the presiding judge. The witness had already testified what his instructions from his principal were without objection. Judge Kershaw seemed to wish to have his own memory freshened on this matter, and hence he asked the witness, in effect, to repeat his testimony on this point. While the practice of the trial judge, taking the examination of a witness into bis own hands, is not to be commended or approved, it is a matter of every-day experience in our courts for the trial judge to ask a witness a question. When it is realized what a great responsibility is devolved upon a Circuit Judge in seeing that j ustice is properly administered in the court, some latitude must, of necessity, be accorded him. ud. In asking the witness this question, ‘You know whether or not you were induced by that act to pay the money?’ after witness had just stated that he could only give the circumstances, and, as he did pay the money afterwards, that must [153] have been his inference.” The objection here presented must be overruled. The “Case” brings the scene in the court room very distinctly to the eye. The witness Boss had detailed his instructions time and again, his refusal to turn over the money until the eight per cent, interest was provided for in the note ; that he, Poole, and Bagwell were not attended by any one else; that the note was changed in his presence, and in the presence of each one of the three; that, while Bagwell said nothing, he acted in conjunction with Poole; and that, by reason thereof, he, Boss, paid over the money. These answers had all been given by Boss in the course of his direct examination, and yet, when plaintiff's counsel asked the question whether that is the truth, the witness replied : “I have stated that we went back in there after seeing this note, and I don’t know whether Mr. Bagwell said anything. I couldn’t say; I just give you the circumstances as I remember. I did pay the money afterwards, and that must have been my inference.” The presiding judge then remarked: “You know whether or not you were induced by that act to pay the money.” This remark of the judge was intended to bring the witness directly to the matter, and to end what seemed to be a useless consumption of time. This court cannot view the action of the trial judge with disapproval. 5 The next question to be considered is, whether any or all of the instructions of the Circuit Judge to the jury,.complained of by the appellant, constitute error. The second ground of appeal is: “Because his honor, Judge Kershaw, erred in charging the jury that the Supreme Court had decided that the addition of the words below the note had been inserted in the body of the note without giving the qualification clearly expressed in the opinion of the Supreme Court, ‘so far as Poole could make it so.’ ” The very paper submitted showed that Wash. Poole alone had signed it; that Bagwell did not sign it. Of this fact there has never been any question. The Circuit Judge was instructing the jury as to the effect of such addendum to the note in question, under the decision" of the Supreme Court—that such addendum was to be considered as an alteration in a material point of the note in question. It was not necessary for the trial judge to repeat the exact words [154] that occurred in the text of the decision, provided, always, that he preserved the effect of such decision. The whole charge of the judge shows that he fairly presented to the jury the true question involved in the second trial, namely, whether Bagwell, the surety, not having written his name to the addendum, and not having uttered any words in relation to such addendum, was estopped by his conduct on the occasion when the addendum was penned and the money paid immediately thereafter, from denying his assent thereto. This being so, as appears by the charge of the judge, we see no error here. 6 The third ground of appeal is: “In charging the jury, iu substance, that Bagwell was estopped by his silence from taking the position that the change in the note released him, and that good faith required that, he be bound in this transaction, thus violating art. IV., sec. 26, of the Constitution.” By a careful examination of the “Case,” it will be seen that the Circuit Judge did not assume to pass upon the facts; he left that work, where it belonged, to the jury. All that he did was to announce what he conceived to be the rule of law applying to a set of facts to be determined by the jury. This is the province of the judge. From him the jury must take the law, and if he makes a mistake, this court may be invoked to correct him. The correctness of the principle of law we will discuss hereinafter. We must overrule this objection. 7 The fourth, seventh, and ninth exceptions will be considered ' together, and are as follows: 4. “In charging that it was not necessary that Bagwell should have consented in words to the change in the note to be bound by it, but his silence was enough—thus depriving the j ury of the right to draw the distinction between a negative consent, inferred from mere silence, for Poole to be bound by the new part of the contract, and an active consent, to be bound himself by such new contract—such consent as might have been evidenced by his signing such agreement.” 7. “In charging the jury that Bagwell, the surety,” could be bound (by) implied consent, through silence, to pay the new eight per cent, contract of Poole, the principal, in the face of the provision of the statute of frauds, that no promise to pay the debt of another is binding unless in writing.” [155] 9. “In refusing to charge, as requested: ‘It being proven that the note in controversy was altered after being signed, the surety was released by such alteration, unless he actively consented to such alteration, and agreed to become bound by its terms, and this the plaintiff must show.’ ” The main question involved in these grounds of appeal relates to the effect in law of a certain line of human conduct, and, as far as it is practicable, we will endeavor to meet the issue fairly and fully. But, before announcing our conclusion, it is proper to be observed that the Circuit Judge, in his charge to the jury, did not confine his utterances to the single phase of Bagwell’s conduct, the silence maintained by him when his principal, Poole, wrote and signed the addendum, but he included, also, his other conduct during the entire transaction. It is true that the Circuit Judge did comment upon Bagwell’s silence itself, yet the whole of the charge shows that he impressed upon the jury how the law would regard the other elements that made up the conduct of Bagwell on the occasion referred to. In all human transactions the element of good faith is anxiously looked for and imperatively demanded in a judgment of approval. The maxim that “silence is golden” is not accepted in the law, if it is the duty of man to speak. If a man knows of a defect, and remains silent, so that he thereby imposes upon his fellow-man, the law does not approve of such silence. If a man with a secret interest in property attends the sale thereof, whereby it is announced that the purchaser at such sale will receive good title to the thing sold, and after the sale is made, such person holding a secret bona fide interest in the article of property so sold, attempts to assert his interest, the law views his conduct with disapproval. When a man who holds the money of another for investment on certain terms that are made known to the parties seeking the loan of such funds, and when a note is presented to evidence the terms of the loan, and the agent discovers that the note is not in accordance with the terms of such investment, and makes known wherein such note is defective, and declines to accept such note or part with the money, until there is a compliance with the terms in question, and thereupon one of the proposed borrow [156] ers says, “We will fix that,” and both principal and surety thereupon go with the agent into a private place or office, where the principal writes a compliance, and the surety says nothing, and the agent then accepts the note and pays over the money, can the personal representative of the surety, who dies after the transaction and before action brought on such contract, altered as it was, successfully interpose the defence in such suit, that his intestate (the surety Bagwell here) was released from such contract by such alteration! We think not. We feel that the Circuit Judge wras right when in his charge he said: “It is a question of good faith, gentlemen. You cannot act in such a way as to deceive a man, and induce him to believe a thing, and act upon that thing which your conduct induced him to believe, and then claim you are not bound by it.” Nor can the statute of frauds be invoked to protect such wrong doing. Yery fortunately, the note in question was signed by the surety, and the alteration of the note so written and signed by him was made in his presence virtually by his agent duly authorized thereunto. We must overrule these exceptions also. 6, 8 The fifth ground of appeal is: “In charging and ruling on the facts, and indicating to the jury by said charge and rulings his opinions of the facts of the case, as will appear at folios 25, 26, 51 to 54.” The appellant is not entitled to have this court to pass upon these matters, if we were strict in our adhesion to the rules regulating counsel in the presentation of matters to this court on appeal; for he has not set out in his exception here referred to the substance of the matters complained of, but has simply referred to the folios in the case, where they may be found. This is not correct practice, and we have felt it our duty to say so. Still- we are unwilling to seem, even, to avoid any labor that justice may require at our hands, and have carefully considered this complaint of the appellant. Upon an examination of the “Case,” we find that, the Circuit Judge was careful to admonish the jury that “what the evidence proves is for you.” Yt folios 25, 26, the Circuit Judge, in deciding that certain questions could not be asked by the plaintiff, stated in what form the questions could be asked. Then, at folios 51 to 54, the Circuit Judge stated the effect of [157] the testimony hypothetically : “If you should find, &c.” “If it was done, cfee.” “It is not necessary that he should have consented in words, if he acted in such a way, &c.” “If the note was altered, &c.” We are at a loss to understand how the Circuit Judge could convey his rulings upon the questions submitted, except he stated the effect of the testimonj7 hypothetically. We must overrule this exception. 9 We will now consider the question raised by the sixth, tenth, and eleventh exceptions: 6. “In charging the jury, in case they should find for plaintiff, to calculate the interest at eight per cent., under the contract as altered, when plaintiff had not asked any such judgment, but had sued on the old seven per cent, contract.” 10. “In refusing to charge as requested : ‘Plaintiff cannot recover in this case on the note sued on, because the proof shows that said note has been altered, and there is now no such note. Nor can he recover on the new contract, because he has not sued on said new contract.’ ” 11. “In refusing to charge as requested: ‘If plaintiff seeks to recover on the eight per cent, contract, such agreement, so far as the change of interest is concerned, is not a sealed instrument, and is barred by the statute of limitations.’ ” It may be as well to state frankly that we do not perceive, under the proofs here, what may be technically called a new contract. It is true, it is sought by the addendum, written at the foot of the note, to enlarge the interest from seven per cent, to eight per cent, per annum, and this court has decided that such act was an alteration of the contract as first stated. Would it be true that the addition of a “wing” to a dwelling-house made it, so to speak, anew house? We have no difficulty, so far as this phase of the question here raised is concerned. In order for the plaintiff to avail himself, in his judgment on the note of the increased rate of interest from seven to eight per cent., he should have amended his. complaint. It is not true that the defendant pleaded in his answer the terms of the alteration of the contract. The answer avoids setting up this writing itself; it only seeks advantage from the fact of an alteration of the contract in a material point of view. Such being the case, we fear that the plaintiff must suffer a [158] diminution to this extent in the amount of his verdict. In reaching our conclusion we are not unmindful of the liberal provisions of our Code in the matter of amendments. And at one time during this investigation it was supposed that section 191 might assist the respondent, inasmuch as the testimony at the trial that was not objected to seemed to establish eight per cent, as the interest that was agreed upon, and that, under that section, it is the duty of the court to disregard the variance as immaterial, and either to order an immediate amendment or to direct the fact to be found according to the evidence. Upon reflection, however, the conclusion was reached that the testimony at the hearing in the court below was directed to establish that the addendum was made with the full knowledge and approval of Bagwell, the surety, and this idea is not necessarily inclusive of that of an increase of interest in the judgment asked for in the complaint. The interest should be reduced, in order that the issue, as found, should be responsive to the issue as alleged in the pleadings. We can see (of course, not in this case,) that for this court to hold a formal amendment or an actual amendment of the complaint unnecessary, might lead to great carelessness in pleading, and we would not willingly lend ourselves to contributing to such a result. 10 Lastly, we will dispose of the twelfth ground of appeal, which is: “Because the Circuit Judge erred in setting aside the first verdict rendered, and allowing a new verdict to be found by the jury, without having a new trial of the case.” The case states this matter as follows: “The clerk, after reading the title of the cause, read the verdict, which was as follows: We find for the plaintiff $709 dollars. J. W. Wofford, foreman.’ Immediately after the reading of this verdict by the clerk, and before any thing else was done, the attorney for the plaintiff stated to the court that the jury had evidently made a mistake in the calculation by which the amount of the verdict was reached, His honor, the presiding judge, then asked the jury if they intended to find for the plaintiff the full amount of the note, with interest at eight per cent, per annum, less the credits which had been proven and admitted. The foreman replied that that was the intention of the jury. His honor then [159] said to the jury, that, inasmuch as it had been suggested to the court that there was an error in the calculation by which the amount found had been reached, they might retire to their room again and make another calculation on the basis on which they intended to find their verdict, and if upon such new calculation they find they had made a mistake, they might correct it.” The jury availed themselves of the opportunity to correct their error of calculation, and returned with a verdict for $811.90. All this was done in the presence of attorneys for each side respectively, and without objection expressed to the court. We have thus carefully stated from the “Case” itself the facts in the language there employed. The statement refutes the objection. The action of the presiding judge was perfectly correct. Harley v. Neilson, 1 Rich., 483; Gatewood v. Moses, 5 Id., 247; where the court said: “As to the remodeling the verdict by sending the jury back, or having it written according to the intention of the jury, in the court room, there is nothing wrong. The course pursued by the judge is in exact conformity to the practice which we all pursue, and which our predecessors pursued from the earliest days of the administration of justice of which we have any knowledge.” We, therefore, overrule this ground of appeal. 11 It is the judgment of this court that the judgment of the Circuit Court be reversed, and the case remanded to that court for a new trial, unless the plaintiff shall, within ten days after written notice of this judgment, remit upon the record in the circuit $102.90 of the recovery, in which eveDt the judgment of this court is that the judgment of the Circuit Court, so reduced in amount, be affirmed. Mr. Justice McGowan concurred.