Bryce v. Massey

1. Acceptance of Service — Waiver.—Is the acceptance of due service of a copy of a proposed amended complaint and of notice of a motion for leave to file it, a waiver of an order permitting it to be filed ? 2. Supplemental Complaint — Limitation of Actions. — A complaint alleged advances supplied, balance due ascertained, and a note for this balance given by defendant’s agent, and that no part of this note or of the account had been paid. The case remained on the docket, without progress, for nine years, when the administrator of plaintiff, who had died, filed a supplemental complaint, stating the indebtedness as the cause of action, and the note as security therefor, the death of the original plaintiff, administration by the present plaintiff, and his ownership of the claim. Held, that the supplemental complaint was filed in time, that it was based upon the same cause of action as the original complaint, and, under a plea of the statute of limitations, the action was held commenced when the summons was first issued. 3. Construction of Written Instruments — Parol Evidence. — Two written papers, one intended to qualify the other, must be construed together and by the language employed. There being no latent ambiguity, parol evidence of intention is inadmissible. 4. Construction — Agricultural Liens. — Defendant for the purpose of cultivating his plantation A, and also, by his agent, his plantation B, not to exceed $10,000, pledged all of his property and all crops raised on said plantations, acknowledging the receipt of $1,900 on the B place, and declaring that all advances must be on his order. He subsequently authorized the orders of his agent to be honored in so far as the B interest may extend to crops there raised and stock, &e., there used. Held, that defendant intended to give a lien on all his property and all the crops raised on both plantations, to secure advances not exceeding $10,000. 5. Equitable Mortgage — Description.—This lien was good as a mortgage between the parties, although unsealed and attested by only one witness, and although the property is indefinitely described. 6. Construction — Agricultural Liens. — The advances authorized were limited to $10,000 and were to be made only on the written order of defendant, or, as to the B place, on the written order of the agent for the use of the B plantation ; and to this extent, but this extent only, did defendant make himself responsible. 7. Ibid. — Ibid.—There was nothing in this agreement that restricted the advances to the year in which the paper was given. 8. Ibid. — Ibid.-—-Defendant having limited his liability to $10,000 for advances on both plantations, he can bo hold liable only for so much advanced on B plantation as remains after deducting the advances to A plantation from 810,000 ; and this remainder must be credited with all payments made on account of the B plantation. 9. Exceptions — Appeal.—Items charged by a referee and not excepted to on Circuit, cannot be made a ground of appeal. 10. Rote by Agent — Admission.—The agent had no authority to give a note in defendant’s name for the balance due. Such note might operate as an admission, but subject to correction. 11. Debtor and Creditor. — Plaintiff, in the absence of collusion, could not lie charged with personal property on the B plantation, made away with by the agent.

Action by J. Y. Bryce, as administrator of T. W. Dewey, against James R. Massey and C. B. Jones. The report of R. E. Wylie, Esq., referee, was as follows : Under an order of court, dated the 12th day of March, 1887, it was referred to the undersigned, as special referee, “to inquire and report upon the issues raised in the pleadings ; and, that the said referee report his findings of facts and conclusions of law in reference thereto, as well as the testimony taken hereunder by him, to this court, all equities to be passed upon and reviewed by the court upon the coming in of the report.” Having taken the testimony as directed by said order, and after bearing argument of plaintiff’s and defendant’s attorneys, I beg leave to submit the following as my report: T. I find as matter of fact: On the 30th day of January, 1869, the defendant, Jas. R. Massey, to procure advances in money and supplies for the cultivation of crops on his own plantation in Lancaster County, and on a plantation in Chester County, known as “the Landsford Plantation,” under the management and control of C. B. Jones, to an amount not exceeding ten thousand dollars, executed and delivered to J. Y. Bryce and W. H. Bryce, merchants doing business in the city of Charlotte, in the State of North Carolina, an instrument in writing in words as follows : “State of South Carolina, County of Chester. For provisions and merchandise to me furnished by J. Y. Bryce & Co., of Charlotte, N. C., for the purpose of carrying on my own plantation in Lancaster County, and, also, my plantation known as the Landsford place, by my agent, not to exceed in value the sum of ten thousand dollars ($10,000.00). I do hereby pledge and pawn to the said J. Y. Bryce & Co., all my real and personal property of every kind and description, including all the cotton and other produce raised on said plantations, and all other produce so raised, together with all of my stock of every kind and description, and all of my farming tools and implements. This lien to have priority over any other lien, mortgage, or conveyance by me made to any person or persons whatever. Given under my hand and seal, at Charlotte, N. C., this 30th day of January, 1869. In signing the aforementioned agreement, I herein acknowledge the receipt of $1,900.00, to me paid by J. Y. Bryce & Co., as an advance on the Landsford place; and it is hereby understood that the advances of money or provisions must be controlled by the order of myself in writing. “JAS. R. MASSEY.” The concluding part of the said paper, after the figures “1869,” was added by the defendant, Massey, before signing same. This paper was probated for record on Feb. 1, 1869, and, as appears by endorsement on the back of said paper, was recorded in Chester County, in register of mesne conveyance office, in deed book PP, No. 164, 155. This paper is marked by me “Paper D.” 2. On or about the 1st day of February, 1869, the defendant, Massey, addressed the following written communication to Messrs. J. Y. Bryce & Co.: Charlotte, Feb. 1st, 1869. To Messrs. J. Y. Bryce & Co.: Col. C. B. Jones being my authorized agent in the purchasing and procuring advances for the Landsford place, his orders will be duly honored in so far as the Landsford interest may extend, in like manner as all the advances which may have been made to me before this order was given, that is, to the crops raised and farming implements used on the Landsford plantation. JAS. R. MASSEY. The plaintiff, not being satisfied with paper “D,” owing to the concluding part in the handwriting of the defendant, Massey, requiring any advance made to be only “on the order of myself in writing,” sent to Massey, for him to sign paper “E”, filled out down to the word “honored” inclusive. Massey, before’signing, added the concluding part from the word “honored” to the end. Bryce admits having received this paper back, shortly after it was sent to Massey. 3. I find that J. Y. Bryce & Co. commenced making advances to C. B. Jones, agent, on the 30th day of January, 1869, and continued to advance during that year and until the 31st day of March, 1870. I find the total amount, from Jan. 30th, 1869, to March 31st, 1870, inclusive, including $1,900.00 rent admitted by Massey to have been advanced Jan 30th, 1869, to be, $10,534 99 Deduct 1st item of credit in acc., $1,118 81 And aggregate sales 47 bales of cotton, 4,617 19 Total credits to be deducted from acc., $5,736 00 $5,736 00 Balance due on acc. on 31st Márch, 1870, $5,294 27 Deduct price of mules of date June 1st, 1870, 600 00 Balance due, ' $4,694 27 The plaintiff claims as the balance due, on 31st March, 1870, the sum of $5,660.35, but I find this to be too much. The true amount is as above stated, $4,694.27. I find that J. Y. Bryce & Co. had advanced to C. B. Jones, individually, during the year 1868, and, at the end of the year 1868, Jones had to his credit $1,188.81, and that this amount was carried forward by Bryce & Co. and entered as the first item of credit in the account of C. B. Jones, agent, for the year 1869. I find that the defendant, J. R. Massey, had an individual account with J. Y. Bryce & Co. for the the year 1869, which he paid in full, early in the year 1870. About the 2d of April, 1871, the firm of J. Y. Bryce & Co. sent to C. B. Jones a statement of account for supplies for Landsford place, claiming as the balance due, the sum of $5,660.35, which Jones admitted to be correct, and executed to J. Y. Bryce & Co. a note for said amount, as follows: $5,660.35. Charlotte, May 2d, 1871. Six months after date, I promise to pay to the order of J. Y. Bryce & Co. fifty-six hundred and sixty dollars and thirty-five cents. Valué received and payable at-due-. C. B. JONES, agent. I find that Jones had no authority to execute this note, as agent for Massey. Soon after the date of this note and before its maturity, it was transferred to Thomas W. Dewey and T. R. Tate, bankers, then doing business at Charlotte, N. C., under the firm name of Tate & Dewey, who then became the true owners and holders thereof. That Thomas R. Tate died some time before the 19th Dec., 1872, leaving as his survivor in said banking business Thomas W. Dewey. 4. That, on the 19th day of December, 1872, an action was commenced by Thomas W. Dewey, survivor, plaintiff, v. Jas. R. Massey and C. B. Jones, defendants, by summons and complaint, in which judgment was prayed against said defendants for five thousand six hundred and sixty dollars and thirty-five cents, with interest, at the rate of seven per cent, per annum, from 2d of November, 1871, and costs of protest amounting to $2.31. This summons and complaint is marked by me “Paper A.” The defendant, O. B. Jones, let the suit go by default. The defendant, Jas. R. Massey, filed his answer to said summons and complaint in due time, setting up some grounds for defence. This paper marked “Paper B.” That, on the 4th day of November, 1873, the attorneys for Thomas W. Dewey, survivor, plaintiff, served upon the attorney for the defendant Massey a copy of paper purporting to be an amended complaint, with a notice that at the next court a motion would be made for leave to file said paper as a supplemental complaint in said case. That there never has been an order of court allowing said paper to be filed. 5. I find that the case remained in this condition on the court calendar until the death of Thomas W. Dewey, when the case, in consequence of his death, went off the calendar. On the 11th of August, 1886, the present plaintiff, J. Y. Bryce, was appointed by the judge of probate for Lancaster County, South Carolina, the duly qualified administrator of Thomas W. Dewey, deceased. On the 6th day of September, 1886, an action was commenced by summons and complaint, in this court, by J. Y. Bryce, administrator, plaintiff, v. Jas. R. Massey and O. B. Jones, defendants. This new action by Bryce, administrator, was in the nature of a supplemental complaint to revive the old case of Dewey, survivor, v. Jas. R. Massey and C. B. Jones, defendants. The defendant, Jas. R. Massey, in due time, filed his answer to said supplemental complaint, setting up various grounds of defence. 6. 1 find that the whole amount of advances made to C. B. Jones, agent, were made for the Landsford place, so far as the evidence shows. That Massey had nothing whatever to do with the Landsford plantation, in Chester County. The evidence shows that Massey lived on the place with the defendant Jones and his family, but that he had nothing to do with the management of plantation. On the contrary, the evidence shows that Massey was carrying on a farm, at the same time, in Lancaster County, and had an individual account with J. Y. Bryce & Co. 7. I find, as a matter of fact, that the stock and personal property on Landsford place in 1869, and covered by paper “D,” was kept by Jones for several years and afterwards disposed of by Jones, although Massey had instructed Bryce to take the property. My conclusions of law, from the facts in this case, are as follows: 1. It is my opinion, and I so find, that the plaintiff has no causo of action against the defendant Massey, and the complaint as to him should be dismissed. The original contract of the defendant Massey set forth expressly that all advances to the agent “must be controlled by the order of myself in writing.” The change in the agreement by which the orders of Jones, the agent, were to be received as those of Massey (see paper “E”), was made with the express restriction that “all the advances should be paid for out of the crops raised and stock and farming implements used on the Landsford plantation.” In other words, all personal liability of Massey, on account of advances to the Landsford place, was eliminated by his adding the concluding lines to paper “E.” At least, this is my construction of paper “E,” when viewed in the light of the testimony. This paper, as sent by J. Y. Bryce to Massey, was very broad in its terms, and if Massey had signed it as it was, he would clearly have been bound for all orders of Jones, the agent. But Massey did not sign the paper until he had made additions thereto, .which, I think, qualify his liability. That portion of paper “E”. in Massey’s handwriting is somewhat ambiguous, but he must have intended to mean something by the added words. Viewed in the light of the testimony, I am forced to conclude that it was his intention not to be personally liable for the advances, but that J. Y. Bryce & Co. were to look to the crops raised and stock and farming implements used on the Landsford plantation. I am persuaded to believe that Massey’s version of the matter is true, that he signed the papers as principal to protect Jones from his creditors. 2. There being no order of court allowing paper “C” to be filed as an amended complaint, I conclude that it is no record in this ease. But the suit being originally for goods sold and delivered (the note for $5,660.35 being mentioned as evidencing said indebtedness), the action was revived when the summons and complaint in the case of J. Y. Bryce, administrator, plaintiff, v. Jas. R. Massey and C. B. Jones was served upon the defendants. 3. I find, as matter of law, that paper “D” cannot operate as a mortgage, because signed by Massey before only one witness and being not under seal. This paper contains no description of property, either real of personal, and has none of the formalities of a mortgage. Hence, I hold that this paper (construed alone), is a mere obligation in writing of the defendant Massey. These being my conclusions of law, I recommend that the action as to the defendant Massey be dismissed. The defendant, Jones, having made no appearance, I recommend that the prayer of the complaint as to him be granted. To this report both parties excepted, and the cause came on for trial on these exceptions. The Circuit decree, after stating what the referee had decided, was as follows: The cause of action in the supplemental complaint filed by Thomas W. Dewey, survivor, and by his administrator, J. Y. Bryce, is an account for advances made by J. Y. Bryce & Co., and secured by the written instrument signed by the defendant Massey, referred to in exhibits UD” and UE,” and seeks a judgment of foreclosure as to the defendant Massey’s land and personal property in Lancaster County. There was no order of court obtained, granting leave to file the amended or supplemental complaint, but the referee concludes that, as the original action was for goods sold and delivered (the ¡§5,660.35 note of Jones being merely mentioned as evidence of the debt), the action was properly revived by the service of the supplemental complaint upon the defendants in the above entitled action. The defendant Massey, in his exceptions, alleges that the referee .erred in this conclusion. There is force in the defendant’s exceptions, but it is not now an open question. The objection to the improper joinder of causes of action in the amended or supplemental complaints, as well as the objection of the failure to obtain the leave of the court to file said complaint, should have been raised and considered by the court before this order .was granted by the court referring all of the issues to a referee. It must be assumed that these objections were considered by the court in granting the order of reference. It is now too late to raise such objections to the form of the pleading by exceptions to the report. The referee concludes that the effect of exhibit “E” was to relieve the defendant Massey from personal liability under exhibit “D” for advances made by J. Y. Bryce & Co. to the defendant Jones, on the Landsford place, and recommends that the complaint be dismissed as to the defendant Massey. The plaintiff alleges in his exceptions that in his conclusions the referee erred, and should have held that the defendant Massey was personally liable for all of the advances made by J. Y. Bryce & Co. to the defendant Jones after January 30th, 1869. In ascertaining the liability of the defendant Massey for advances made to the defendant Jones, exhibits “D” and “E” must be construed together. When written instruments are not ambiguous, the terms of the agreement in writing cannot be explained, varied, or contradicted by parol testimony. It is, however, competent to show by parol testimony the relation of the parties and the circumstances under which the written agreement was entered into, to aid the court in construing the legal effect of the written instrument. It seems that exhibit “D,” down to and including the figures “1869,” and exhibit “E” down to and including the word “honored,” were prepared by J. Y. Bryce & Co., and submitted to the defendant Massey for his signature. The defendant Massey declined to sign the papers as submitted by J. Y. Bryce & Co., but in his own handwriting inserted in said writings all that appears after the figure and word above mentioned, before signing said writings. J. Y. Bryce & Co. accepted the papers as amended by Massey, as the evidence of the contract as to the advances to be made to the defendant Jones. The amendments made by Massey were evidently intended to qualify or modify the agreement as proposed by J. Y. Bryce & Co. The defendants, Massey and Jones, at the time of the agreement, lived together on the Landsford place in Chester County, cultivated by Jones during the year 1869. Massey cultivated a plantation in Lancaster County during the year 1869. Jones had an account with J. Y. Bryce & Co. during the previous year, 1868. Massey had an individual account during the year 1869 with J. Y. Bryce & Co., which was paid during the early part of the year 1870. Exhibit “D” does not in form comply with the statute, but is in the nature of an agricultural lien. There is no period fixed for the payment for the supplies to be furnished, nor is there any limit to the period during which advances are to be made. I cannot agree with the referee in concluding that Massey is not personally liable for the advances made by J. Y. Bryce & Co. to Jones on the Landsford place under exhibits “D” and “E.” I conclude that Massey is individually liable for advances made during the year “1869” by J. Y. Bryce & Co. on this order of Jones for the Landsford plantation, and that the lien given in exhibit “D” can only attach to the crop raised on the Landsford place during the year “1869,” and to whatever interest Massey had in the Landsford place and the personal property on said plantation. I am satisfied that the amendments to the written exhibit inserted by Massey were intended and should have the effect of excepting his Lancaster property from the operation of exhibit “D.” To this extent the referee’s report must be overruled and the plaintiff’s exceptions sustained. The $1,900 referred to in exhibit “D” should be charged in the advancements made to Jones for the Landsford place during the year 1869. As Massey has paid his individual account with Bryce & Co. during the year “1869,” I do not think that the referee erred as alleged in plaintiff’s third and fourth exceptions, relating to the order to Wyley, Roddey & Agurs and C. TIenkle, and said exceptions must be overruled. Under exhibit “E” Jones’ agency was limited to orders upon J. Y. Bryce & Co. in purchasing and procuring advances for the Landsford place. And I agree with the referee that Jones had no authority, as Massey’s agent, to execute the $5,660.35 note to J. Y. Bryc.e & Co. It is immaterial whether or not Massey controlled and managed the Landsford place. His liability depends upon the construction of exhibits “D” and “E.” It appears from the evidence that the advances were made to Jones on the Landsford place by an agreement between Jones and Massey, constituting Jones as Massey’s agent, to protect the crop and property on the Landsford place from liability to Jones’ creditors. I am satisfied, however, that J. Y. Bryce & Co. had no knowledge of, and did not participate in, such an agreement. As already stated, the defendant’s exceptions as to the form of the pleadings come too late, after the order of reference of all the issues, and cannot be considered. The referee has not passed upon the application of the plea of the statute of limitation set up in the answer of the defendant Massey. The defendant Massey, in his exceptions, alleged that the referee erred in not holding that plaintiff’s action as to the defendant, Jas. R. Massey, is barred by the statute of limitations. Section 142 of the Code provides that no action shall abate by the death of a party if the cause of action survive or continue. The action was not barred when it was originally commenced on September 19th, 1872, and, regarding the present as a revival of the original action, I do not think the statute of limitations can apply. • Exhibit “D” is in the nature of an equitable mortgage, but it is not under seal. The referee reports that the personal property on the Landsford place in 1869, covered by exhibit “D,” was kept by the defendant Jones for several years, and was disposed of by Jones after Massey had instructed J. Y. Bryce & Co. to take said property. The plaintiff has entirely failed to'show that any of the property on the Landsford place could be made liable under the judgment of foreclosure, for which he prays. Under these circumstances I do not think that the plaintiff is entitled to a judgment of foreclosure against the defendant Massey under exhihit “D.” It appears that from the 14th January to December 81st, 1869, J. Y. Bryce & Co. made advances to O. B. Jones, as agent of Massey on the Landsford place, to the amount of $7,672.69, and that during the same year Jones delivered to J. Y. Bryce & Co. cotton, for which $6,456.76 was placed to Jones’ credit, leaving a balance of $2,215.73 due, for which balance plaintiff is entitled to judgment against the defendant, James R. Massey. It is, therefore, ordered and adjudged, that the plaintiff, J. Y. Bryce, have judgment against the defendant, James R. Massey, for the sum of two thousand two hundred and fifteen dollars and seventy-three cents ($2,215.73), with leave to issue execution against the defendant Massey for said sum, together with the cost of this action. As the defendant, C. B. Jones, has not answered, the cause should be transferred to calendar 3 for judgment by default against said defendant, if the plaintiff be so advised. It is ordered and adjudged, that the report of the referee, filed September 17th, 1890, be overruled in so far as it conflicts with this decree, and in all other respects said report is hereby confirmed and made the judgment of this court. Except as herein sustained, the exceptions to said report are hereby overruled. From this decree both parties appealed. The exceptions are too long for insertion here, covering eight printed pages of the Brief. The points raised are clearly stated in the opinion of this court.