Frost & Co. v. Weathersbee

Citations

• 23 S.C. 354
• 1885 S.C. LEXIS 111

Syllabus

<p>1. A letter of guaranty in the following words, to wit: “In consideration of your agreeing to advance to W. & Co. not exceeding the sum of §7,000 and interest, I hereby guarantee to you the repayment of the sums advanced and commissions as agreed,” is a limited and not a continuing guaranty.</p> <p>2. The words “commissions as agreed” in this letter of guaranty did not mean that cotton purchased by the principal debtor should be received in payment of the guaranteed debt to the exclusion of subsequent advances made by the creditor to purchase cotton.</p> <p>3. The facts of this case show a new and independent arrangement ' between this creditor and W. & Oo. after the guaranteed debt was full, under which the creditor advanced moneys to W. & Co. to purchase cotton, which was to be shipped to the creditor; and these two debts, one secured by the guaranty and the other by the cotton, to be shipped, remained distinct, notwithstanding their entry upon the books of the creditor as one continuous account.</p> <p>4. Semble. Where cotton is shipped by a debtor to a creditor holding two demands, the proper time for the debtor to direct application of payment is when the cotton is shipped, and not when its sale is ordered.</p> <p>5. But money having been advanced by a factor to purchase cotton, upon the security of such cotton being shipped to him, the person receiving the advances cannot direct the proceeds of cotton so shipped to be applied to another debt.</p> <p>6. And the creditor, as factor, had a factor’s lien upon the cotton in his possession, it having been purchased with money advanced by him, and he therefore had the right to apply the proceeds of its sale to the repayment of his advances.</p> <p>7. As it does not appear that any material fact or principle involved was overlooked in the decision, there is no ground for a re-argument. Petition for re-hearing therefore refused.</p>