Sanders v. Bagwell

Mr. Chief Justice McIyer,

concurring in the result. The former decision in this case must be regarded as finally determining : 1st. That the addendum to the note amounted to an alteration of the note in a material respect—it being the same,, in effect, as if the words of the addendum had been incorporated, by interlineation, in the body of the note. 2d. That such an. *160alteration would release the surety, unless he had consented thereto. So that when the former judgment was reversed, the only question remaining open was whether the surety had consented to such alteration. If he had, then plaintiff was entitled to judgment; otherwise, the verdict should be in favor of the defendant. This question of fact—whether the surety had consented to the alteration—was left to the jury under what, I think, were proper instructions, as shown in the opinion of Mr. Justice Pope; and their verdict must be regarded as determining this question in favor of the plaintiff, who was, therefore, entitled to judgment—but for what amount? Clearly for only such amount as was consistent with the case as made by the complaint, viz., for the balance due on the note, with interest at the rate of seven per cent., there being no allegation in the complaint which would entitle him to demand any greater rate of interest. See Straub v. Screven, 19 S. C., 450.

In this case a petition for a rehearing was filed by defendant and appellant, on the grounds (1) that the amount, $102.90, ordered to be remitted was not the true difference between interest at eight per cent., as found by the jury, and seven per cent., the correct interest, decided by the Supreme Court; (2) that the decision of this court did not fix the date at which the deduction should be made; (3) that this being a law case, this court had no jurisdiction to pass upon the several facts which were necessary to be determined in ascertaining the amount due on a calculation of seven per cent., no such facts having-been passed upon in the court below; (4) that, as there was error in the court below, this court was bound to order a new trial, so that the facts could be passed upon by a new jury; and (5) that the case should have been sent back for an amendment of the complaint.

December 7, 1892, the following order was passed

Per Curiam.

12 After a careful consideration of this petition, we are unable to discover that any material fact or principle of law has been overlooked, and, therefore, there is no ground for a rehearing. If there is any error in the figures, it is due to the statements found in the “Case,” *161as prepared for a bearing in tbis court, for wbicb tbis court is not responsible. Tbe only other matter wbicb even seems to require attention is as to tbe date wben the amount directed to be remitted shall be deducted. We do not see bow such a question can be raised; for it is too plain for argument that tbe amount should be deducted as of tbe date of tbe judgment. Tbe court, having discovered error in tbe judgment to tbe amount stated, simply ordered a new trial, unless tbe plaintiff should voluntarily correct such error, according to tbe practice wbicb has obtained from time immemorial.