I think that the petition for rehearing should be granted for the following reason, if for no other: A very material issue in the case was whether Mr. Brice, in the collection of the note and mortgage, acted as the agent of Mrs. Neely; and it was strongly urged by counsel for the respondents, and in the concurring opinion of Mr. Justice Blease, that, after the death of Mr. Brice, John A. Neely, as the agent of his mother, filed a claim against the Brice estate for the moneywhich Brice had collected, and thereby ratified the act of Brice.
In their printed argument counsel for the respondents state: *Page 347
"The plaintiff herein has therefore filed a claim against the estate of J.S. Brice, whose agency they are now attempting to repudiate, for this very same sum of money uponwhich they are suing for foreclosure against the defendantsherein."
In the concurring opinion of Mr. Justice Blease this occurs:
"The evidence shows that the plaintiff, after the death of Mr. Brice, filed her claim against Mr. Brice's estate, for thevery money which Mr. Brice had collected from Col. Gastonon the mortgage of the land in question."
The learned justice then proceeds to cite the cases ofMiles v. Gadsden, 139 S.C. 52; 137 S.E., 204, and Milesv. Felkel, 139 S.C. 95; S.E., 329, to sustain the proposition "that where the mortgagee filed claim against the estate of her agent, or supposed agent, for money collected by such agent on the mortgage debt, such conduct on the part of the mortgagee was evidence of ratification of the agency to collect the money."
The sole evidence upon which the statement was made in both instances was in the testimony of John A. Neely, quoted in the argument of counsel as follows:
"Q. Have you filed any proof of claim against the Brice estate? A. Yes, sir.
"Q. Did you file any on this? A. Yes, sir; for the Love$1,200 note and mortgage."
That is all that appears. The claim as presented was not offered in evidence. Col. Lewis, the administrator, said not a word about the filing of the claim. He detailed a conversation with Neely after the death of Brice, and, of course, after the money had been paid to him, thus:
"He made a statement about the papers that ought to bein Mr. Brice's hands belonging to Mrs. Neely, and among them he stated that there was a F.P. Love paper for $2,000, payable to J.S. Brice, attorney, and that it was indorsed and assigned. * * *" *Page 348
No demand for the money collected by Brice, but for thepapers. Evidently, Neely did not know at that time that the money had been paid to Brice, else he would not have referred to the papers as "papers that ought to be in Mr.Brice's hands."
Neither the Special Referee nor the Circuit Judge made a finding with reference to the filing of the claim. It must be conceded that the great emphasis and force which the concurring justice placed upon and drove home the point must have had its effect upon other members of the Court. If there was error in the statement, its baneful effect can only be cured by a rehearing.
I confess to an error on my part in the following statement:
"The evidence shows that, after the death of Brice, and after John A. Neely learned of the receipt by Brice of the $1,200, which belonged to his mother, John A. Neely filed a claim (I will assume as agent for his mother), against the administrator of the estate of Brice, for the amount so received by him,"
— as upon a review of the evidence I am convinced that the record does not bear out the statement.
Inasmuch as the record does not establish anything more than a claim for the papers, and not for the money, I think that, as a simple act of justice to the appellant, when it so clearly appears that an error has been committed, which was calculated to affect the decision, the rehearing should be granted, with leave to the appellant to move for an enlargement of the record, or, if need be, that the case be remanded for the purpose of clarifying the situation. It is entirely that, but for the impressive argument upon the question of ratification, the decision would have been that outside of it there was no evidence that, in the transaction consummated by a deliberate spoliation of the evidence of the plaintiff's interest in the note and mortgage, Brice was acting as agent of Mrs. Neely. In fact, his cancellation of the assignment *Page 349 could have been made with no other intention than to conceal the fact that she had any interest, and that he was acting solely in his own improper interest.