August 14, 1925. The opinion of the Court was delivered by Action for $837.23, the balance claimed to be due upon an account, evidenced by an account stated.
The controversy has arisen out of transactions between the parties covering the period from 1920 to 1922, inclusive. The plaintiff is a corporation engaged in the mercantile business at Clio, S.C.; the defendant, a farmer, living some 18 miles from Clio, his nearest railroad station being Bingham, S.C. *Page 67
On the 7th day of January, 1920, the plaintiff agreed to furnish advances to defendant during said year for agricultural purposes in a sum not to exceed $3,000.00. To secure the payment of such advances the defendant on the same date executed to plaintiff an agricultural and chattel mortgage covering all crops of cotton, cotton seed, corn, oats and other crops therein named that the defendant might be interested in during the year 1920, on about one hundred and ten acres of land, which fell due October 1, 1920. At the end of that year, according to the plaintiffs' books, the defendant's account stood thus:
Items charged .....................................$ 2,997.54 Credits:In the meantime, however, the defendant made certain deliveries of cotton to the plaintiff, the proceeds of which were to be applied to the above balance, secured by the chattel mortgage upon the defendant's crop: October 30, 1920, 10 bales of short staple, which were shipped by the defendant in the plaintiff's name, from Bingham, S.C. consigned to Savage Son Co. at Norfolk, Va.; November 23, 1920, 6 bales of long staple, which were shipped by the defendant from Bingham, S.C. to the plaintiff at Clio: January 25, 1921, 2 bales of short staple and 2 bales of long staple, which were hauled by the defendant on his wagon and delivered to the plaintiff at Clio.Sept. 17, 1920, overcharge on bagging $ 18.00 Oct. 6, 1920, cash .................. 430.94 448.94 _______ _________
Balance ........................................$ 2,548.60
The plaintiff shipped the deliveries of November 23, 1920, and January 25, 1921, 8 bales of long staple and 2 bales of short, to Savage Son Co., at Norfolk; thus placed the entire 20 bales, 8 of long staple and 12 of short, with Savage Son Co., held in the name of the plaintiff, and upon which advances were made by Savage Son Co. to the plaintiff.
The plaintiff held the 20 bales on deposit with Savage *Page 68 Son Co. until June 7, 1921, at which time it was ordered sold, by the plaintiff, and realized:
For the long staple:*Page 6910 Bales at 9 1/2 2 " " 5 1/2 ..................$538.12 Less storage, etc. ................. 106.63 $ 431.49 _________ For the long staple: 4 Bales at 13 1/4 2 " " 10 ___________ 2 " " 5 1/2 ..................$402.29 Total ................................... $ 765.06 _________ ___________
After the balance as of January 1, 1921, had been ascertained at ...................... $ 2,548.60
Advances continued up to June 7, 1921 (the date of the sale of the cotton), amounting to 695.52 __________ $ 3,244.12
To which the proceeds of the sale of the 20 bales were applied ...................... 765.06 __________ Leaving due ............................... $ 2,479.06
Thereafter advances continued up to Oct. 1, 1923, amounting to ..................... 647.37 __________ $ 3,126.43
And deliveries of cotton were made thereupon: September, 1921 ................ $ 309.82 November, 1921 ................ 1,251.46 September, 1922 ................ 330.48 November, 1922 ................ 263.48 July, 1923 ..................... 66.98 September, 1923 ................ 66.98 $ 2,289.20 ______ __________ Balance ............................... $ 837.23
The contention of the defendant is that the agreement between him and the plaintiff was that the plaintiff would pay the warehouse charges upon the cotton, and that it should not be sold until the defendant decided to sell the same, and should make his request known to the plaintiff; that the plaintiff ordered the cotton sold without notice to him; and that the price realized was at a great loss to him; that the cotton should have been sold not later than March 1, 1921; and that he should be allowed credit for what cotton was worth when he delivered it, or at least what it was worth on March 1, 1921.
The defendant, in his testimony, makes no effort to establish the allegation in his answer that the plaintiff agreed to carry the storage charges upon the cotton. His testimony attempting to sustain the other allegation that the plaintiff agreed to store the cotton until it pleased the defendant to have it sold is exceedingly vague. He says:
"He said put the cotton at Bingham and ship it to Savage Son Co. and send me the bill of lading and the weights here, and then he said when you get ready you can come and settle most any time."
The testimony of the plaintiff's manager is much more consonant with the probabilities of the case:
"No particular agreement. I advised and begged Mr. Summerford and others to sell their cotton, and they thought cotton would go up in January, and I told them if that was the case I would try to hold the cotton, but couldn't hold it indefinitely, that I needed my money, and Mr. Summerford said, `Do the best you can with mine,' and I said, `I will do that.' And I sent to Mr. Summerford time and again during the winter, and especially when cotton was around 20 cents, and was hanging around 16 and 17 cents, and told him that I must have my money; that I couldn't wait any longer. Then Mr. Summerford asked me to hold the cotton, and I told him I would do so, but we had no agreement as to the length of time, and I tried to induce him to *Page 70 sell the cotton, which must have been best for him as well as other people. He left the cotton with me to do the best I could with it. That is the way the cotton was left with me. I have been in the cotton business too long for a man to come in and tell me to hold cotton indefinitely. It isn't a business proposition, because it is a one-sided affair."
The defendant did nothing, and now seeks to throw the loss incurred by his inaction and the plaintiff's effort to accommodate upon the plaintiff. The latter had pledged the cotton to secure advances which he would not have needed if the desire had not been to help the defendant.
Any right, however, which the defendant may have had to question the propriety of ordering the cotton sold in June, 1921, has been waived by the action of the defendant in giving a new mortgage in March, 1922, after he had knowledge of the sale, for the balance due on January 1, 1922, $917.78, which was a balance struck after allowing the defendant credit for the proceeds of the sale.
In addition to this, the defendant, in July, 1923, more than two years after the sale of the cotton, gave his note to the plaintiff for $66.98, representing the interest upon his indebtedness up to January 1, 1923, which included the application of the proceeds of sale, and paid it at maturity. The letters of the defendant in 1923 show a recognition of his debt to the plaintiff, asking indulgence and promising to pay, without an expression of the least dissatisfaction with the method of the plaintiff's handling.
It is a hard case upon the defendant, but it is clear that he has suffered from the failure of the realization of his hopes in the rise of cotton rather than from improper conduct on the part of the plaintiff.
The report of the Referee, Mr. Riley, confirmed by Judge Dennis, is entirely satisfactory to the Court. Let them be incorporated in the report of the case.
The judgment of this Court is that the judgment of the Circuit Court be affirmed. *Page 71
MR. CHIEF JUSTICE GARY, MESSRS. JUSTICES WATTS and MARION, and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.