Historical Newspapers of South Carolina

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Ill Hill II ,'^M The Abbeville Press and Banner. J | BY HUGH WILSON; ABBEVILLE, 8. C., WEDNESDAY, JANUARY 17, 1894. ESTABLISHED 18441| DURST & TMnnppnp A TTnT) 1 891. We have recently enlarged our business very much, ? GOODS carried by any one firm in upper soutn uaronna, i FINE STOCK OF CLOTHING, (one whole room devoted We guarantee to please you, anc 2 Re The State of South Carolina. 2 a . COUNTY OF GREENVILLE?IN THE SUPREME COURT. } Eighth Circuit?November Term, 1803. P u Samuel T. Weyman and George W. Connors, Partners as Weyman & Connors, Plaintiffs, Appellants, against B. F. a Perry, W. T. Crews, J. P. Latimer, T. C. Gower, and J. ^ W. Gray, Defendants, Respondents. Ci li Argument of Cothran, |VVells, Ansel & Cotliran,' George W. " Dillard, and J. W.jj Gray. Attorneys resj^ctively for the *"! Defendants T. C. G6\ver, J. P. Latimer, and J. W. Gray, S1 Respondents. u Statement or Facts. p This action was instituted May 31, 1802, upon a scaled note S( signed by the defendants, .dated February 3, 1892, due ninety s days after date for $700, payable to W. C. Dodson, interest from 0, , date at 8 per cent, for "value received in printing supplies, includ- sf ing type, &c." 0] The complaint alleges, (1). The partnership. (2.) The execu- a, tion and delivery of the note by the defendants to W. C. Dodson r( in the city of Atlanta. (3.) The assignment of the note by Dodson to plaintiffs subsequent to its execution and delivery and S( before its maturity. (4.) Nonpayment. (5.) The negotiability! / of the note under the laws of Georgia. (6.) Amount due upon p the note. j 0' The defendants B. F. Perry and W. T. Crews failed to answer w and judgment by default was taken against them. The other de- j t, fendants answered, (1.) Admitting the partnership. (2.) Ad- n mitting the assignment of the note. (3.) A general denial. (4.)'ft! Alleging by way of defence that they were sureties; that the'it note was executed to enable Perry to purchase a lot of printing n supplies from W. C. Dodson of Atlanta; that the consideration was so expressed in the note; that Perry agreed to execute a p( mortgage upon the material to indemnify the sureties ; that Perry s| did not deliver the note to Dodson, but procured the same to be ? discounted by plaintiffs, and applied part of the proceeds to the p iMiwhauQ nf mntoriftl n^inpr the remainder for his own benefit, v? 7 0 giving Dodson a first mortgage upon the whole to secure a balance p due on his purchase; all without the knowledge or consent of the ^ defendants. The defendants therefore contend that their contract t< has been altered as to the consideration and that the note has never been delivered. d ^ The case was tried before Judge Izlar at the March Term, 189:3. ^ resulting in a nonsuit. ti The facts of the case appear as follows, from the plaintiffs' testi- a mony : The defendants all lived in the city of Greenville; the v payee of the note was a dealer in printing material in the city of <j of Atlanta. Perry and Crews for the purpose of purchasing a lot p of such material signed the note sued upon in this case and pro- ti cured the signatures of the defendants in the city of Greenville. p On the same day they executed a chattel mortgage, and after re- / citing in the premises that B. F. Perry and W. T. Crews were in- v debted to \V. C. Dodson in the sum of $700 by note with J. P. t< Latimer, T. 0. Gower and J. W. Gray as sureties thereto, mort- t( gaged to said sureties to indemnify them from loss, an engine, w "And also all the printing material I have bought of W. C. Dodson, for which this note is given." r On or about the same day B. F. Perry went .to Atlanta to per- y feet his trade with Dodson. He went into Dodson's office as the tl latter, in his testimony, (folio 10), says: "To purchase some t( printing material, about which we had had some correspondence." At folio 27 Dodson says : That they had approximately b but not accurately agreed upon the amount of goods he was to buy by this correspondence. Perry presented the note to Dodson n and asked that he accept it as cash in payment of his purchase, >< (folio 10.) Dodson declined to do so, telling him that he had p quoted him the lowest tush price, hence would not' accept a note, tl no matter how good, in lieu of cash. Dodson then suggested to a< " ^..4. toa if j,o nnnlri nnt the note ... jrerry uiuuicgu uumuu nw- ?? v.,...- ..v. ? and then pay cash for the goods* Perry left Dodson's office and T went to see plaintiffs. He saw Mr. Conners, of the firm, and e< told him that Mr. Dodson would not accept the note but wanted ? the money instead. Mr. Conners told him he could not let him j have the money until he saw Mr. Johnson, the head clerk of Mr. tl Dodson. Connors went to see Johnson and in consequence of d what Johnson said Connors came back and let Perry have $G70 ^ upon the note of $7(K). Perry went back to Dodson and with ^ $(>70 in his pocket, told Dodson he could pay him $o00 cash on the purchase of $380 worth of printing supplies. Dodson agreed to tl nn.i ?/viL' nn iinrrtwiTiPiif fmm him reserving title to " IIUS aim ivv*% iw* ??n* vv.ov.. %. w the whole as security for the $80 unpaid. A short time after- ^ wards Perry bought an additional $200 worth from Dodson "upon j( the same condition, allowing me to retain title to all the material si as security," (folio 17. The note was never in Dodson's posses- 'r sion, folio 24, and "several weeks after the transaction, certainly ? f several days," Dodson endorsed the note to Weyman & C'onners, folio 25, "Because he considered their possession prima facie evi- tl dence that it was their property, and they were entitled to have ti it endorsed to them," folio 28. P' * mrwv A *rmwif l'Ul.1 IS Ai.1AU i nvm m. IUSI > c< "We submit that every allegation made in the answer is sustained by the testimony adduced on behalf of plaintiffs, with the sin- st gle exception that the endorsement by Dodson was made after J the maturity of the note. This is immaterial. The case may g( well be considered as if the plaintiffs had demurred to the an- fo, swer. if The two grounds of the motion for the 11011 uit were, (1.) e" There was no delivery of the note. (2.) The contract of the sure- ^ ties was altered. These we will consider. tc Was There Delivery of the Note ? m.mf hnvA hppn a rlolivprv pit,her to Dodson or to the h 1X1C1U iilUOV IIWIV ? ^ plaintiffs, to sustain the complaint. The motion for a non-suit must be considered with reference to the allegations of the com- ^ plaint as sustained or not, by the testimony. The plaintiffs allege ^ in the second paragraph of the complaint that, "the defendants e, I" executed, and at the City of Atlanta . . . delivered to W. C. st jjr CO.'S co-< SUCCESSORS TO J. K. DTJRS ?##!?, fjttte, Ji !0 that we now occupy THREE GROtJND FLOORS ; md consequently are selling them accordingly, We a . to this line), and are making the VERY CLOSEST PI L solicit your patronage. Our \ spectfully, Godson of slid city their certain sealed note," etc. Again, in par graph III they allege, "That subsequent to the execution ana uevevy of said note and before the maturity thereof the said W. C. >odson for value received at Atlanta, Ga., assigned the same to laintiffs," <i*c. Their title is thus based, by theirown statements, pon the validity of the delivery to Dodson. Upon this point )odson says, at folio 16, "He presented a note, for, I think, $700, nd asked that I accept it as cash in payment for his purchase. I eclined to do so, telling him that I had quoted him the lowest ash price, hence could not accept a note, no matter how good, in eu of cash." I suggested to him to go out and see if he could ot discount the note and then pay cash for his. goods." At folio 4, in answer to the question, "Was the note ever in your possesion?" he says, "It never was." At folio 26, in answer to the uestion, "Was that note ever delivered to you?" he says, "It 1as not." " - - ^ ^ " i-?- ftrt ic\r~ One of the plaintiffs, u. w. uonnors, at iojio 01, says, mui-. 'erry wanted to get the money on this note, saying that Mr. Dodvi would not accept the note, but he wanted the money instead." But, the appellants contend, by suggesting to Perry that he go ut and discount the note and return with the cash, Dodson confuted Perry his agent, and that this amounted to an adoption f the-note, a constructive delivery to Dodson. That is to say, it mounted to what he had positively and persistently declined to cognize. Delivery is a question of intention largely, and an act cannot be ) construed whfre the intention to the contrary is manifest. If the intention was to adopt this note, to make it his own roperty, then it must have been his intention to treat it as his ivn. If so, why allow Perry to discount it at a ruinous rate, wuvinnc'ti?nnu /-?i? nnmnloint'' Dp whv illlnW POITV tO 1U1UUU ICII??iau?lll.C Ui bum j'lUiKV w ..-v ? irn over to him only $.300 of the $070 received, without a deland for an accounting? Dodson did not know {is a matter of ict where the $300 came from. He says that he understood that ; was the proceeds of the note, but Perry, his agent, did not so mch as tell him that he had negotiated the note. To constitute a delivery there must have been a delivery to the erson intended and for the purpose intended. And even if it loukl be held that this amounted to an adoption of the note by odson it certainly was not a delivery in return for printing suplies. Suppose Dodson himself had discounted the note and given 'erry cash instead of printing supplies, would these defendants g liable upon the note? We think not, for that would amount ) a diversion of the purposes for which the note was given, 'hen Dodson could not do by an agent what he himself could not o. The only connection that Dodson, the original payee, had rit-h flip note was to endorse it without recourse after the plain Iffs had purchased it. He h?d washed his hands of it at the first, I nd as additional evidence of his intention to have nothing to do I ,'ith it he so endorsed it. In answer to the question why he enorsed it, he says at folio 28: "I considered their possession rima facie evidence that it was their property, and they were enitled to have it endorsed to them." Q. In other words, it was to erfect their claim of title to the note in Weyman & Connors? k.. I so understood it." The appellants contend that the note ;as delivered to Dodson in the face of these facts. He declined 3 accept it, it was never in his possession, it never was delivered ; him, and when he endorsed it, he did so because he thought it \as their property. The plaintiffs claim depending upon the validity of the delivey to Dodson, they cannot escape the non-suit by arguing that lere was a delivery to Weyman & Connors. But waiving for le sake of argument this objection, have they shown a delivery ) the latter? The defendants certainly never intended a delivery to them, ut on the contrary intended that the note should be delivered ) another person for a different piece of property, which was lentioned in the note. The Chief Justice says in Mills vs. Williams, 16 S. C. R. (500 : They certainly never in person made any contract with the laintiff, and, if it is sought to bind them by a contract made irough their agent, the plaintiff must show that the act of the ?ent was within the scope of his authority." The evidence shows not only that the act was beyond the scope f the agent's authority but that the plaintiffs knew that it was. hey knew from the face of the note that they were not the pa.ve?s ; they knew from the face of the note that it was given for the urpose of procuring; not cash which they were about to furnish, ut articles of a specific character; they were told by Perry of lodson's refusai to accept the note. They must have known lat the agent was exceeding his authority. It is clear that they i iri not. THfrard Perrv as the agent of Dodson. He made no dec irations suggesting such a thing. They say that upon "ine reputation that these men were all partners of his, we let him have le money." (Folio 36.) The facts in this case present a weaker claim for the plaintiffs lan either Gourdin vs. Read, G Rich. 497 or Mills vs. Williams, 3 S. R. 598. In Gourdin vs. Read?Read, for the purpose of assisting one ommander, signed with him as surety, a joint and several bond, aving the date and the name of obligee blank, with the underanding that when Commander found some one willing to lend loney on that security he was to fill the blanks. Read defended y alleging that he had revoked the authority originally given to ommander to fill the blanks in the bond and negotiate it, before le money was borrowed from Gourdin. The plaintiff contended o.rw.i,! hv thi>! revocation unless he had no lilt lie VUU1U nut l/V lillwwv* -,J v...., ce of it. The Supreme Court held that as Gourdin's title de-1 ended upon the power of Commander at the time he filled the*' tanks, to do that as the act of Head, the plaintiti took the risk of s revocation, and whether he had notice of this revocation >uld not affect the question. i The Chief Justice referring to this case in Mills vs. Williams,! lys: "This is much stronger than the case now before the Court. | here the surety had originally invested the principal with an-; lorityto fill the blank in the bond with the name of atiy per-} )n from whom he could borrow the money, and yet, although the j r>nd was left in the possession of the principal, it was held that1 Qiithoritv was revoked, the surety would be discharged, I ^en though the person who loaned the money had 110 notice tuat 1 jch authority had been revoked. Here, however, the person { 'ho delivered the note to the plaintiff never had any authority j )doso, but, on the contrary his instructions were to deliver it ) another person, for a particular thing specified, in the note, and is delivery to the plaintiff* was wholly unauthorized, and can no ind these defendants." In the note in this case there were no blanks. The principal, erry, had at 110 time, as in Gourdin vs. Head, authority to in3rt anything. The note was intended for a certain person, to ol>un certain articles, and the plaintiffs had actual and full knowjdgeofboth; not only from the'terms of the note but from the tatement of Perry as Conners admits. DPERATD o_ ^TrrT/?kT T?G A T TP A 51 C& vv xivyijjLJKji.xxjjL-1 'ieks, fireceri^s, Ian 7 && 7 ^5=2^ GrREElSrW< TWO SECOND STORIES and THREE WAREHC re headquarters for all lines and you save money by pure! IICES POSSIBLE ON THEM, as well as on all other Varehouse is ready to receive yoi J". K-. PI The ease of Mills vs. Williams, is, it seems to us, conclusiive ol the questions raised by appellants. The following' is the syllabus: "A principal executed a sealed note with her husband and two others as sureties for a sum certain, expressed to be for "value received in mule," with the name of the payee left blank, and delivered it to her husband as her agent to purchase a mule from a certain drover whose name was forgotten. The husband used the note in the purchase of a horse of greater value from another per l;.. ..Klionflnn fnr Hio flift'oroncp TTplfl! thllt 5LS soil, giving 111? UWU UMJigttuwii iv/x vnv utt.vAVMw. , to the other parties to the note there was no delivery, and the husband was alone liable to the holder, even if no notice other than that expressed in the note was brought home to the holder that the note was intended for another." The question of delivery is decided independently of the relation of suretyship. The title of plaintiffs to the note depends upon the existence of the power in Perry to transfer the note at the time. If he did not nave the power to deliver it to another than the payee named, the plaintiff cannot claim that they were ignorant of this fact. If all the signers of the note were principals, Perry was none the less their agent to deliver the note to Dodson only. The Sureties arc Discharged. The defendants, as sureties, are discharged by the improper con duct of the principal and the payee. Their contract has been altered without their knowledge or consent. That the defendants, respondents, were sureties upon this note appears at folio 40. The plaintiffs introduced in evidence the mortgage given bv Perry and Crews upon the printing material bought from Dodson. In the premises of this mortgage the defendants are described as sureties. The mortgage states that it was given "to fully save them harmless by reason of being my surety to the said W. C. Dodson, for the payment of said note." It appears from the date of the note and this morlgage that they were executed at the same time. The plaintiffs cannot contradict their own witness. The mortgage taken in connection with the signing of the note shows that the signatures of the sureties were obtained upon his promise to indemnify them. At least, the two transactions must he taken together as evidencing the contract of the parties. The consequences of Perry's unwaranted conduct show the reasonableness of the rule that the surety is entitled to stand upon the contract as made. Instead of carrying out the agreement with the sureties, to deliver that note to W. C. Dodson for ?700 worth of printing material he negotiates it with plaintiffs for $070 in cash. The note was due in ninety days and drew interest from date at 8 per cent.per annum. Me shaved it at the rate of nearly fiye per cent for three months or twenty per cent, per annum, 111 uucuuon 10 me eight per cent, it was drawing. Instead of applying the $670 in cash to the purchase of material he pays Dodson $500 on a purchase of only $580. Not content with this variation of the coniract, he gives Dodson anjrgreement in the nature of a mortgage by which Dodson reserves^the title to the whole material until the balance of eighty dollars is paid. He continues the havoc by purchasing $200 worth in addition and secures that with a similar reservation of title to the whole in Dodson. What became of the ?170 in cash which Perry retained out of the ?670 obtained from the Plaintiffs, it is impossible to say. It is suflicient to know that the mortgage which he had given to indemnify his sureties was postponed to this reservation of title in Dodson until $280 was paid. The very purpose of the sureties in limiting their liability to $700 worth of printing supplies purchased from W. C. Dodson was thus frustrated. It will be ob?nrvorl thnt these sureties took everv possible precaution to protect themselves. They signed an unnegotiable paper,?under seal ana payable only to \V. C. Dodson, without words of negotiability. They expressed in the note the purpose for which it was intended. They took from Perry a mortgage of indemnity. If leges subveniunt vigilantibus non (lormientibus, these sureties must eertainlv not-suffer. The following citations show how carefully the rights of the surety are protected by the Courts! A creditor has no right to vary the situation in which a surety to a bond has placed himself. He cannot do any act which shall increase the risk or responsibility of the surety incurred by his executing the bond. Hampton vs. Levy I MCCh. 112. Brandt. Surety Sections. 95, 330, etc. Trinsley vs. Kirby 17 S. C., 11. 4. Gardner vs. Gardener 23 S. C. 11. 590. * i.? nnn K? n unrntv tor tile DUrDOSO Of eil iV IIUIG JUI WM8 milieu UJ x-- t abling the principal maker to' borrow that amount from the payee. The note was payable to the payee or bearer and the surety added the words as surety. The principal maker save the note to plaintiff, who was not the payee, upon $2000 cash and the release of an old debt of $2000 informing plaintiff at the time for what purpose the note was given and that lie had no right to vary it from that purpose. 1 leld surety released. Benjamine vs. Rogers (N. Y.) 20 N. E. 970. "Mr. Burge, in his work on suretyship (chap. 3), discusses this subject at length. I Ie says: "The contract of suretyship is to be construed strictly; that is, the obligation is not to be extended to i- -ji. onv nprinri of time any ouier sunjtvi, to uii// uuitr /jci avri) m ?.w ?.v t __ than is expressed, Or necessarily included in it." "Where a note given to a bank by a person indebted to it was signed by the debtor's sister on the bank's representation that a further loan would be made the debtor, but no such loan was made, and the note was held merely as collateral security, it was a defense that the note was diverted from the purpose for which it was signed; and an inquiry could not be made as to whether the use which was mane of the note was more disadvantageous than that stipulated would have been. Second Nat. Bank vs. Dunn, 151 Pa. St. 223. Neither can delivery of a bill or note be made to a stranger, e. g as where the paper is taken originally and discounted by another person than the payee named in it. ' Rand. Com. Pa. 341 Sec. 223. First Nat Hank vs. Strang 72 III. 559. Allen vs. Ayers, 3 Pick. 288. Hank vs. Jones, 10 Pick. 574. Bank vs. Dunn 151. Pa. St. R. 228. Permoyer vs. Watson 10 Johns. R. 100. The ease of Keith vs. Goodwin 31 Vt. 208 is relied on by the appellants. There the note was payable to a certain bank with the intention that it be discounted bv the bank and the money delivered to the principals. The cashier of the bank discounted it and afterwards endorsed it on his own account in the bank's name to a third person. It was held that this wasa sufficient adoption by the bank to render the note binding on all parties to the contract. The decision is based upon the ground that the note was intended to ?il nmivivl vvlv.it be discounted for money, ana tnar, us m? |)uhl.i>?. was intended, the surety's contract was not affected: that the payee was a mere forma 1 part of the note: and also upon the ground that the hank was actually in possession of the note, and adopted the note as its property hy the endorsement of its Cashier and the receipt by the'JJank o'f the value of the note from its endorsee. The distinction between this case and the one at liar is apparent. The note was not executed to - - The iMivee. enable Perry to obtain money out prn lllllg IlKlUwt". Dodson, never had possession of the note, never adopted it as his property ; lie only endorsed it lor the purpose of perfecting plaintills, title to the note, which at the time of the endorsement lie considered prima facie , as he said, in plaintiffs. ^ The Court in Keith vs Goodwin admit that the rule is otherwise in Massachusetts, Maine and Ohio, and it may have added South Carolina. There might have been some analogy between the two cases if 1~E STORE. ND RETAIL DEALERS IN" Iware, |?m gsppiies. J DOD, S. C., OCTOBER 20, 1893. [-M (USES. We are carrying THE LARGEST STOCK 01 lasing from us. We Have an unusually LAKiii ajnu ; goods, Our stock comprises almost everything you want. M lii; Cotton if you wish to store it. rR.iST, Manager. J : Dodson, subsequently to the negotiation with Weyman A Connors, had refunded to them the sura they advanced and then en dorsecl the note to some one else. Appellants lay great stress upon the fact that $o00 of the money was actually used by Perry in purchasing printing material from ; the payee of the note. They contend that the note should be , sustained for that amount at least. . ; We think the answer to that is, that the note in its entirety is j or it is not, the obligation of the defendants. Their very conten! tinn on this ground is an admission that the contract has been al- . ' I tered. The defendants originally intended to be responsible to . W. C. Dodson for $700 worth of printing supplies. Theappel- ' 3 lants contend that they are not liable for $700, but for $500. This 'i reduction of their liability has been occasioned by the joint action of the principal and the payee. A surety's contract cannot be altered even where the alteration is to his advantage. \' Sanders vs. Bagwell, 32 S. C. R. 240. The analogy between suretyship and letters of credit on this line is perfect. The whole subject is well illustrated by the case of Phillip vs. 'AsJm Mellville, (cited in Burge on Suretyship, p. 68). In that case Mellville recommend one Yetts to Dusie for a supply of spirits, ' 11| and guaranteeing the payment. Dusie wrote on the back of the letter of credit an assurance to C. and J. Phillip, plaintiffe, that ' f not having the article himself he had sent Yetts with the letter of credit, on which they might rely. They having furnished the ' spirits sued Mellville'. The Court held that;a letter of credit, addressed to a particular person is limited to him, and that the -hkM writer must be held to have granted it in reliance on his pradence and discretion'in acting upon it: that such a letter contains ' no general power to interpose the ^writer's credit, or transmit his guarantee, and that this is to be specially observed where the general terms of the letter make the personal limitation the only re- i straint on the responsibility of the writer. Burns, et. al. vs. Barrow, 61. N. Y. 43. Walsh vs. Bailie, 10 Johns. R., 100. From these cases it appears that if Dodson was not prepared to ' g supply the material himself, at the time Perry presented the note, he could not have endorsed the note to another dealer in such material and thereby enabled Perry to obtain the desired articles from such other dealer. Much less would he have the power to suugest to Perry that he negotiate the note for money . ,-M with some one else and then pay him cash for the material. I Exception 1. Appellants compl ain that "VV. C. Dodson was not allowed to tesfy as to his intention (1) in suggesting to B. F. Perry to discount the note and (2) as to the assignment of the note. The Brief does not show any effort on the part of plaintiffe to prove by Dodson his intention in suggesting to B. F. Perry to discount the note. At folio 16, Dodson details the conversation, and his intention is very clearly shown not to accept the note but to accept the cash if Perry succeeded in discounting the note. At folio 18, Dodson was asked first what was his understanding with Perry at the time of his conversation with him as to the assignment of the note. Dodson answered that the matter was not discussed. Counsel then asked him what was his personal expectation in reference to the assignment. Upon objection this qiies"r,iu inmmnot/int Pnnnspl now except that Dodson was 11VU WOO I.1V4V4 1I1WVUJ not allowed to state his intention. "Expectation" is the weakest term possible to support a contract. Plaintiffe were seeking to 'A establish a contract between Perry and Dodson, and foiling to j show an understanding they sought to prove an ex parte expectation. "Intention" signifies a formed design, a purpose to do a thing. "Expectation," a looking forward with some confidence. This exception does not cover the point. But, assuming that the exception reviews the exclusion of Dodson's expectation, was there. error ? If the contract'had been established by proof, evidence of Dodson's "intention" or "exptctation" would not be received. Here it is sought to supply the want of proof of the contract by evidence of such intention or expectation. "A witness' understanding with another based upon a certain " conversation is not evidence. The witness should sta5 the " conversation in the words used, or the substance of them. Genbey vs. Bank 35 111. App. 354. ' 1 rt I \T XT' T> *7r;\ (arnrmea in ot u? xv* u?v/? This exception is fully met by the decision of this Court in Brice vs. Hamilton 12 S. C. R. 32. "A naked intent in the mind of a debtor, not disclosed or com" municated to his creditor, as to the application to be made of " moneys paid to such creditor may not be proven. "It is questionable," says the Court, "whether a naked intent un" accompanied by any appropriate act or declaration,can be proved " in any case." In Black vs. Columbia 19 S. C. R. 412 it is held : " The word 4 understanding' falls short of alleging a distinct and express contract between the parties." . Much less would "expectation" or "intention." Exception II. \ 'yM Appellants charge error in rejecting evidence of Dodson's in- ) tention and understanding in accepting from B. F. Perry the proceeds arising from the discount. . - 1 ?7Y,?iar4ri itRnt Vnn understand that /VE 10110 iJU, UHUIISW UBRCU 1/U\1^U1>, the money paid you by Perry was the proceeds of the negotiation of this note?" This question was objected to and the objection sustained. It does not appear from this that there was any effort to prove Dodson's intention or understanding in receiving the money from Perry. They sought to establish the feet that the money paid to Dodson was the proceeds of the discount by proving Dodson's understanding. Of this there is abundant evidence. The rejection of this testimony, if erroneous, could not then have prejudiced plaintiffs. The rejection of the testimony was clearly right. Proof of a substantive fact cannot be made by "understanding." Exception '.VI. This exception is too general for consideration. The only debatable ground undiscussed upon which plaintiffs could demand that the case be submitted to the jury is the question of ratification. The mortgage of indemnity could not be considered as such for it was taken before Perry went to Atlanta with.the note and necessarily without knowledge of his wrongdoing. The only other act tending towards ratification is the conduct of Dr. Latimer when certain property 01 rcuj o >y?? under execution. To constitute ratification the party sought to be charged must be in full possession of the facts. He must know what his agent has done, with the ratification of which he is sought to be charged. There is . . absolutely no evidence of this fact. Doctor Latimer made a claim through his attorney for the property seized a few months after the transactions in At. Ianta. It does'not appear that he knew of what Perry had doneI This was incumbent upon plaintiffs seeking to establish ratification. Exception VII. The plaintiffs proposed to show by the declaration of Johnson, . 1 xL?i. nnfV.ni.ivaH thp npp-otiation of JJodson's cierK, umi imisuu nuu auiiiuti^vvt ?i.v the note. In other words, that Dodson had, before the negotiation, assigned the note to plaintiffs, and subsequently endorsed the note, to perfect the transaction. The note at the time of plaintiffs'interview with Johnson was not a binding obligation upon defendants, for it had not been delivered. Dodson could not assign what he did not own. Until a right of action accrued thereon to Dodson he had no assignable interest. A