Nat'l Cash Register Co. v. Johnson , 130 S.C. 296 ( 1924 )

November 13, 1924. The opinion of the Court was delivered by Action of claim and delivery for the possession of a certain cash register sold to J.W. Steen Co. under a contract reserving title, which is conceded to be a chattel mortgage. The contract is dated April 20, 1912, and the purchase price was $250.00, payable $20.00 cash and the remainder, $230.00 in ten monthly installments of $20.00 each, and one of $30.00. The purchaser paid all of the installments except the last, $30.00 due on March 20, 1913. In January, 1914, they were declared bankrupts. The entire stock of goods, including the cash register, was sold by the Trustee, and purchased by the defendant, Johnson. The plaintiff declined to have its claim adjudicated in the bankrupt proceedings, and brought this proceeding against Johnson, claiming that its mortgage was on record at the time of the sale. This action was commenced March 28, 1916.

At some time not stated in the record, nor whether before of after this suit was brought, the Trustee tendered to the attorneys for the plaintiff (a statement which would indicate that it was done after) the sum of $30.00. "being the last payment due on the contract," which tender was refused. It was kept good and again tendered and refused. during the trial. The defendant claims that this tender discharged the lien of the mortgage, and that he is entitled to the possession of the register. The presiding Judge sustained this contention, and directed a verdict in favor of the defendant. The direction of a verdict could only have been sustained by proof of a tender of the balance due upon the mortgage with interest and costs which had accrued up to that time.

The last payment was due on March 20, 1913, $30, and, if the tender had been made on the day of the adjudication of bankruptcy, January 1, 1914, the unpaid and accrued interest would have amounted to $1.63. It only appears from the record that the tender was made by the Trustee; it is impossible to say whether before or after the suit was commenced. If after, the costs should have been added to the $30 and interest, under the express terms of Section 5630, Vol. 3, Code 1922.

The defendant having relied upon a tender as discharging the lien, it was incumbent upon him to establish it, and, not having done so, the direction of a verdict was erroneous.

The judgment is reversed.

MR. JUSTICE MARION and MR. ACTING ASSOCIATE JUSTICE M.L. SMITH concur.

MR. CHIEF JUSTICE GARY did not participate.