Brewster v. Frazier

Robinson, J., delivered the opinion of the Court. On the 3d of February, 1866, the appellee entered into an agreement with J. Guerard Heyward and Dr. J. W. Kirk, of South Carolina, to plant on their joint account, “Pose Sill Plantation,” for the season of 1866. Dr. Kirk was to furnish the land and medical attendance. Heyward to superintend the planting interest, and the appellee to furnish fifteen hundred dollars during the first month and as much more after-wards to carry on the business as he could procure.

To secure the appellee against loss by such advances, Heyward agreed to give him a bond and mortgage on real estate situate in said State. The appellee advanced fifteen hundred dollars, and Heyward executed his bond and mortgage in pursuance of the agreement. On the 3d of December, of the same year, the appellee placed the bond, mortgage and contract in the hands of the appellants, plaintiffs below, for collection, and took from them the following'receipt: ³⁰⁷ “Charleston, 3d Dec., 1866. “ Rec’d from John J. Erazier, Esq., for collection, a bond and mortgage of J. Guerard Heyward to him, dated 12th of Eeb’y, 1866, for sixteen hundred dollars, and also a claim arising under a contract between him and J. G. Heyward and Dr. J. W. Kirk, dated Feb’y 3, 1866, and out of the collections we are to retain the sum of three hundred dollars, which we have advanced to him on the security of said bond and mortgage, left with us, and to remit the balance to said J. J. Erazier. “Brewster & Spratt.” At the same time the appellee executed the following promissory note: “$300. Charleston, 3d Dec., 1866. “ On the twenty-fifth day of December, 1866, I promise to pay to the order of Messrs.

Brewster & Spratt, three hundred dollars, for value received. “ Jno. J. Erazier.” He also executed a power of attorney authorizing them to collect the several amounts, due on the bond, mortgage and planting contract, and out of the proceeds thus collected, first to pay the note of $300, and the balance to be remitted to the appellee. Hot being able to realize anything on account of these claims, suit was brought by the appellants on the promissory note of $300. It is insisted by the appellee, that the receipt, power of attorney and note, constitute an entire contract, by which the appellants agreed to look exclusively to the collections to be made on the bond, mortgage and planting contract, for the payment of the three hundred ¡dollars thus advanced, and that they have no right therefore to maintain this action upon the promissory note. ³⁰⁸ The question, whether a contract is entire or separable, is sometimes one of difficulty, and no precise rule can be laid down to embrace every case. “Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract.” 2 Parsons on Contracts, 677.

Apart from all other evidence, it will be admitted in this case, that the promissory note pledged the personal responsibility of the appellee, and, in itself, constituted a distinct