#### N. A. PENLAND et al. v. J. E. CRAPO et al.

Pledge— Collateral — Rescission.

Where, in order to induce plaintiff to postpone the sale of his land under deed of trust, C. promised to pay §>280 on another debt which G. owed him and the sale was stopped, and plaintiff went with'G. and IV. to a bank where W. gave the banker at plaintiff's request a certified check to be held as collateral security for the ¡¡>280: Held, that plaintiff was entitled to have the check condemned to the payment of the §280, and that W. could not demand that plaintiff release certain lots from the operation of the deed of trust as had been agreed upon between O. and W.

Civil, ACTION, tried at August Term, 1893, of BüNCO.mbe Superior Court, before-Armpeld, J., and a jury, the purpose of the action being to subject collateral secuiitj!" to be condemned for the payment of a debt.

The plaintiff introduced a deed of trust from J. R. Grapo and William Elliott Gonzalles and wife, dated lOtli of February, 1891, to Duff Merrick, trustee, made to secure to the plaintiff two notes, one for $2,000 and one for $10,600.

N. A. Penland, the plaintiff’, testified that there had been default in payments required to be made by the.deed of trust,.and that he had had the land described in the deed of trust duly advertised by Duff Merrick, trustee, for sale on the_day of _, 1891; that on the day of the proposed sale the defendant Crapo said to him that if he *609would postpone the sale for thirty days he would pay to him, Penland, $280, a sum due to him from Crapo on other debts not secured by the deed of trust. He agreed with Crapo that if he, Crapo, would pay him these other debts he would postpone the sale for thirty days; that the sale at this time was being cried by the auctioneer, who, when this proposition was made by Crapo, stopped crying* the sale until Crapo could go to the bank to get the money and ■came back without it, saying that ho could not get the money, but he had a friend, the defendant Willet, who would secure the $280 to him, Penland, at the Battery Park Bank; that he then went to the Battery Park Bank, a few yards away, when Crapo and Willet came into the hank. Willet had a check or certificate of deposit of $1,000 on a bank at Beaufort, S. C., and he indorsed' it and handed it at his, Penland’s, direction to Mr. James P. Sawyer, the president of the Battery Park Bank, who was to hold the same for the security of the $280 until Willet could get $280 from the bank in Beaufort, S. C., and pay it into the Battery Park Bank for him, Penland, which he was to do at once. He, Penland, did then postpone the sale as agreed; that after this the defendant Willet asked to lot him, Wil-let, take up the certified check or certificate of deposit and let him put the $300 in the bank to be held in the place of it, and he refused, hut that afterwards $300 was loft in the bank to be hold in same way check or certificate was held; afterwards Willet wanted him to release some lots. Pie refused to release them unless he would pay him, Penland, $80 per lot as required by the deed of trust; Willet, several days afterwards, said he was .to have from Crapo several lots for the $280; that he knew nothing about any arrangement made between Crapo and Willet about the $280; that he considered the transaction as one securing the payment *610to him of $280 for postponing the sale, or he would not have postponed it.

Duff Merrick was introduced by the plaintiffs and testified that lie was the attorney for all the parties in drawing-the deed of trust; he advertised the laud as required by the deed of trust or mortgage, and was about to sell; Crapo said he had a friend, Captain Willet, the defendant, who would put up the $280 to pay Penland to postpone the sale for thirty days; the auctioneer was, he thinks, crying the sale, and Penland and Willet came back and said they had arranged the matter, and sale was stopped. Since this suit was brought $300 was paid into the bank in place of the $1,000 certificate; the defendant Battery Park Bank had the certificate at the commencement of this suit. lie thinks he drew some cleeds conveying some lots to Willet on the day after sale was postponed, but that Penland knew nothing about it.

James P. Sawyer was introduced as a witness by the plaintiffs and testified: “ lie is president of the Battery Park Bank and was such at the time of the transaction spoken of by Mr. Penland. Willet and Crapo came to the bank and said Willet wanted to pay Penland $280 and Willet began to draw a check, but did not finish it. He left with the bank on deposit a certificate of deposit of the Bank of Beaufort, S. C., of $1,000 and indorsed it, to be held by the bank as security to Penland for $280. In a few days after this Willet came in and wanted the certificate of deposit, saying the matter had fallen through. He, Sawyer, informed him that he could not give up the certificate unless Pen-land agreed to it. Penland refused to agree to it; after that W. W. Jones, Esq., attorney for Mr. Willet, deposited $300 in the bank in the place of the certificate to him. This was done after the suit was brought.”

The defendant J. R. Crapo testified as follows: “Willet *611deposited $280 in the Battery Park Bank to pay Penland and then tore up the check, and then said to him, Grapo, in the presence of Sawyer, Penland and Rankin, that he was drawing the check to pay for four lots. He had sold' to Gonzalles; that he, Crapo, had told Willet he could buy four lots for $280, and he said lie would take them and'went down to the hank and deposited $280 to pay for the lots; that he, Crapo, introduced Gonzalles to Willet the day before; he knew Willet for several years, but had no business dealings with him. Penland agreed before the deposit was made, when he got $280, in Moore & Merrick’s office. Merrick was there, but does not know that he was present, near enough to hear it; that the company, Crapo and Gon-zalles, owed Sawyer $150, for which Penland was bound, and he, Crapo, owed some other debts, but did not know how much. Penland said he would sell by the trustee unless he got $280 in cash. Gonzalles had offered to sell all his interest to Willet and AVillet agreed to buy on the morning before the sale. Gonzalles backed out. TPe sold out to Gonzalles that day. Gonzalles agreed to sell the four lots. He asked Penland before he went to see Willet that he would release the lots if he got $280. This may have been on the streets.”

The defendant AVillet testified: “Pie did not know Gon-zalles, but had seen Crapo. Crapo came to him on the day of sale by trustee, Merrick, and said $280 was wanted to complete the trade and wanted to know if he, Willet, would buy four lots for $280, and he, Willet, agreed to pay $280 for four lots. He wrote this down at the time. Crapo told him they would be released bjr Penland. Crapo came back and said Gonzalles refused to' sell to him, but they wanted the $280. He went to the bank to make his check to be hold till the deeds were made to him for the four lots. He started to write the check to Merrick, but tore it up. Pen-*612land then came in and sard he wanted to know where his money would be. He, Willet, told him there in the hank. He, Willet, then gave a certified check for $1,000 to a gentleman to secure the $280. Never indorsed by him. About one week afterwards lie asked Penland for his deeds and he, Penland, refused to make them. He left the check for no other purpose than to pay for the lots. As'he went out of the hank after depositing the check he told Penland he did not want to stay here and wanted his deeds and that Pen-lad said they would he ready to-morrow. He never got the deed. Orapo told him, to induce him to take the lots, that there would he a profit of $385 on the four lots.”

Plaintiffs then introduced J. E. Rankin, who testified as follows: “I am cashier of the Battery Park Bank and was in the bank at the time the check was deposited by Willet. The substance of the talk between the parties was that there was a sale of some land and that $280 was needed to stop it, and Willet ivas to become paymaster to Penland for that amount. Willet deposited a certified check on the Bank of Beaufort, S. (!., for $1,000 to secure the $280 to Penland. I did not hear all that was said. Did not hear what the consideration of Willet was. The check was not indorsed; it was not to be collected.”

The plaintiff N. A. Penland, being recalled, testified : “I did not tell Cron zalles or Crapo at any place that I would release the four lots for $280. T told them that I would release the four lots if they would pay me $80 per lot as agreed in deed of trust. Don’t remember any conversation with Willet about deed. Don’t remember hearing Willet say in the bank anything about the $280 being-for four lots.”

Mr. Merrick, being recalled by plaintiffs, testified: “I never heard Penland say anything about the release of foui-lots. I heard Willet say something about $280 being for four lots afterwards.”

*613This was all the evidence offered in the case.

The Court, upon the conclusion of the introduction of the evidence, being of opinion in favor of defendants and having so expressed its opinion, the plaintiffs submitted to a judgment of nonsuit and appealed.

Mr. Charles A. Moore, for plaintiffs (appellants).

Mr. IF. IF. Jones, for defendant.

Risk Curiam :

The judgment of nonsuit must be set aside. Viewing the evidence in the light most favorable to the plaintiff, as we are required to do in this appeal; we find in it what seems to us amply sufficient to sustain his demand that the check or certificate of deposit placed by the defendant Crapo in the Battery Park Bank at plaintiff’s direction shall be condemned to the payment of the sum which that defendant had promised to pay him, as lie alleges.

Error.