Pelzer, Rodgers & Co. v. Steadman

Citations

• 22 S.C. 279
• 1885 S.C. LEXIS 19

Syllabus

<p>1. The construction of a written paper is a question of law for the court, and not a question of fact.</p> <p>2. A surety is a favorite of the law with certain established rights which must be observed by the creditor, but a written contract cannot bo construed in one way as against the principal debtor, and in another as against the surety.</p> <p>3. Therefore, where a husband contracted for an advance of 82,000, which he agreed to repay on a day named, and also to ship to this creditor all cotton controlled by him during the year, to be sold on commissions, and the wife mortgaged her separate property to secure the performance of this agreement, the creditor, in the absence of directions from the principal debtor, might apply the proceeds of cotton so shipped (which proceeds exceeded 82,000), first to the credit of other indebtedness of the principal debtor, and then for a balance remaining due on the account for advances, the creditor could foreclose the mortgage given by the wife as surety. ></p> <p>4. Where a creditor has three accounts for three different periods of time open upon his books against the same person, for one of which he holds the mortgage of a surety, he may apply to either of these three accounts unappropriated payments made by the principal debtor.</p> <p>5. Where a sealed note is taken for the aggregate amount of three several accounts, the law, in the absence of testimony, will imply satisfaction, but such implication may be rebutted by testimony, as in this case.</p> <p>6. A plea of usury being admitted, judgment should be rendered for the principal of the debt, without interest or costs.</p>