July 16, 1908. The opinion of the Court was delivered by The plaintiff advanced to the defendant $26.25, under an agricultural lien and chattel mortgage, dated 12th March, 1904, providing for the extension of credit by the plaintiff, in these words: "That the party of the first part agrees to make advances of money or supplies to the party of the second part, who is engaged in the cultivation of the soil on his own land, containing thirteen acres, *Page 572 and four acres on Charlie Welch's joining W.T. Beard and Charlie Welch's farm, in said county and State, from time to time during the current year to enable said party to make a crop thereon; said advances not to exceed the amount of one hundred and forty dollars, but the amount and kind thereof, whether in money or supplies, to be at the option of the party of the first part." The amount advanced not having been paid, the defendant, in May, 1905, instituted this action of claim and delivery in a magistrate's court for the mule and wagon described in the mortgage.
The answer set up as a defense damages suffered by the defendant from his failure to make a crop in 1904, because of the failure and refusal of plaintiff to advance the entire sum of one hundred and forty dollars mentioned in the mortgage. The verdict was for the defendant in the magistrate's court, and this appeal is from a judgment of affirmance in the Court of Common Pleas.
The cause depends on the refusal of the magistrate to charge two requests submitted on behalf of the plaintiff. The first of these was: "That the lien and mortgage put in evidence and marked Exhibit A, from its terms gave J.T. McNeill the right to make any amount of advances to Preston Conyers that he saw fit, not exceeding the sum of one hundred and forty dollars. That the paper did not bind J.T. McNeill to make advances to the amount of one hundred and forty dollars, but the amount and kind, whether in money or supplies, was at the option of the said J.T. McNeill. In other words, McNeill had the right to advance one dollar or one hundred and forty dollars, just as he saw fit."
The amount and kind of advances, it is true, were to be at the option of the mortgage, but he contracted to make the advances "to enable" the mortgagor "to make a crop." The contract, therefore, manifestly did not contemplate that the option as to the amount and kind of advances could be arbitrarily exercised. Clearly, it was not intended that the mortgagee, in the exercise of his option as to the kind of *Page 573 supplies to be advanced, could require the mortgagor to take the entire one hundred and forty dollars in meat or corn, without regard to the mortgagor's need for these articles in making the crop. It is equally clear he could not arbitrarily exercise his option as to the amount and refuse to advance more than one dollar, for the option is the same as to kind and amount.
As long as the advances, therefore, were reasonably necessary to the making of the crop, and to that end were being so used, faithfully and in the exercise of diligence and care, the mortgage was bound to continue his advances to the amount specified in the contract. Whenever, from the negligence or misconduct of the mortgagor, or any other cause, the advances would no longer be promotive of the making of the crop, then the mortgage could stop, because the advances would no longer "enable" the mortgagor to make a crop.
The last sentence of the first request imported a right in the mortgagor to exercise an arbitrary option as to the amount of the advances, and was, therefore, properly refused.
We think the magistrate, was in error in refusing the second request, which was as follows: "That if they find from the evidence that the plaintiff made any advances under the lien on crop and mortgage offered in evidence, and that such advances, or any portion thereof have not been paid, then the plaintiff would have the right to maintain this action for the possession of all or any of the property described in said lien and mortgage; and if the jury find from the evidence in this case that the mule and wagon that are the subject of this suit, are the same described in said lien and mortgage, then they must find for the plaintiff, if the jury find that there is anything due on said mortgage."
There was not a particle of evidence that the plaintiff had notice the defendant could not get from some other source the fertilizer needed, or that he did not actually get the *Page 574 advances, or that this crop was less by reason of the defendant's failure to make the advances, or that he suffered any damage whatever from any breach of the contract. The case is even stronger against the defendant than Spears v.Fields, 72 S.C. 397, 52 S.E., 44, for there evidence of damage sustained by the defendant was introduced. In that case the Court, in an opinion concurred in by all the Justices, said: "There is no evidence whatever that the plaintiff knew the defendant had rented land and was dependent on the advances he was to make to cultivate it, or that plaintiff was acquainted with the peculiar condition of defendant's agricultural interests in any respect, or contracted with reference to defendant's special circumstances. This being so, the damages arising from plaintiff's alleged breach of contract due to circumstances peculiar to the defendant are not recoverable, and, therefore, cannot be taken into consideration in determining whether the defendant owed a debt secured by the chattel mortgage."
In this case, the judgment below rests on the proposition that the defendant can escape any liability for advances actually made to him and enjoyed by him under a chattel mortgage, because the plaintiff failed to furnish all he promised, though there is no proof that the damages, set up as a defense, were in the contemplation of the parties when the mortgage was given, or at any time; and though there is no proof that the damages alleged, or any other damages, were suffered by the defendant from the breach. The principle is thus plainly and tersely stated in Graves v. Legg, 2 C.L. R., 1266, quoted in 9 Cyc., 651: "Where a person has received part of the consideration for which he entered into the agreement, it would be unjust, that because he had not the whole, he should, therefore, be permitted to enjoy that part without either payment or doing anything for it."Leonard v. Dyer (Con.), 68 Am. Dec., 382; Lunn v. Gage (Ill.), 87 Am. Dec., 233.
The judgment of the Circuit Court is reversed. *Page 575