
    SPEARS v. FIELDS.
    1. Chattel Mortgages — Payment.—Tender of amount due on a chattel mortgage coupled with demand of surrender of note and mortgage is not a conditional tender, but mortgagee should be allowed a reasonable time to produce them.
    2. Ibid. — Claim and Delivery — Damages.—In action in claim and delivery by mortgagee against mortgagor on past due debt secured by the mortgage, mortgagor cannot set up damages, not ordinarily arising out of the transaction, resulting from failure of mortgagee to perform the conditions of the mortgage so as to defeat the amount due unless he shows that mortgagee had notice of his peculiar conditions giving rise to the damages.
    Before Gary, J., Darlington, November, 1903.
    Affirmed.
    Action by C. M. Spears against W. D'. Fields. From Circuit order reversing judgment of magistrate court, defendant appeals.
    
      Mr. George W. Brown, for appellant,
    cites: Tender was good: Code, 1902, 3006; 26 S, C., 337; 16 S. C., 127. Failure to perform conditions is failure of consideration: 3 Hill, 588; Bish. on Con., secs. 671, 676, 689, 690, 691, 695, 703; 1 Hill, 289; 2 Par. on Con., 808, 812, 815, 816; 8 Rich., 137; 1 Par. on Con., 193. Written contract may be rescinded orally: Bish. on Con., sec. 508; 1 S. C., 277; 5 Rich., 167; Chitty on Con., 711; 2 Strob. Eq., 17; 1 Par. on Con., 192.
    
      Messrs. Spears & Dennis, contra,
    cite: Partial failure of consideration is only defense pro tanto: 1 Ency., 195; 6 Ency., 788, 791; Story on Bills of Exchange, 215, 220, 211. No evidence to show\ amount tendered, and it must fail: 28 Ency., 1, 17, 18; 39 S. C., 1. Defense for damages could 
      
      not be set up: 15 S. C., 458; 30 S. C., 167; 40- S. C., 529; 60 S. C., 103; 54 S. C., 400; 45 S. C., 111.
    October 7, 1905.
   The opinion of the Court was delivered by

Mr. Justice Woods.

The defendant gave to' the plaintiff a chattel mortgage of a horse to= secure agricultural advances for the year 1902 to the amount of fifty dollars. Only $20.67 was advanced for the reason, as defendant alleges, that the plaintiff did not have in his store and could not furnish fertilizers and other staple supplies. After the time fixed for the payment of the advances, the plaintiff brought this action of claim and delivery to obtain possession of the mortgaged property. The defendant set up two' defenses: (1) tender of the sum' advanced, $20.67, and (2) damages due to his having to leave uncultivated ten acres of land, which he had rented at $2.50’ per acre, and to loss of time in trying to< make other arrangements for advances. The judgment of the magistrate in favor of the defendant was reversed by the Circuit Court. The question of law made by the appeal is whether there was error of law in not sush taining the defenses set up*.

The finding of fact by the Circuit Court that the tender was conditional is not reviewable by this Court. We may remark, however, that it is admitted the defendant demanded immediate delivery of the note and mortgage as a condition of the tender; the mortgage was then in the clerk’s office, but was subsequently procured and offered tO' the defendant, who objected that the note was not also offered; upon plaintiff’s agent proposing to procure and surrender the note also, defendant replied it would be useless, as he would not pay. The defendant had a right on tender of the amount due to demand surrender of the note and mortgage, but the plaintiff could not be denied reasonable opportunity to' procure them, and when the defendant denied liability and gave notice he would not pay, it was not incumbent on the plaintiff to proceed further. The exceptions as to tender cannot be sustained.

In considering the question of damages, it is to be borne in mind the defendant is not setting up the loss resulting from having to leave a portion of his farm' uncultivated as damages for the “taking and holding” of the property allowed by the statute in claim and delivery proceedings. The claim' rests on an entirely different foundation. The plaintiff’s right to the possession of the property depends on his ability to prove that he held a chattel mortgage and the defendant owed an overdue debt secured by it. The action will, therefore, be defeated if the defndant can show there was really no debt. He undertakes to1 do' this by offering proof that although he received $30.67 under the mortgage, yet by reason of the plaintiff’s refusal to carry out his part of the mortgage contract he was damaged more than $30.67. The damages thus resulting are not set up as a counter-claim, but as a defense to* plaintiff’s allegation of a debt due under the mortgage. Therefore, on this point the case stands precisely as if the plaintiff had sued on the note and mortgage to recover a money judgment, and the defendant had denied the debt because it had been absorbed by the damages inflicted by the plaintiff’s failure to1 carry out his part of the mortgage contract. The inquiry then is whether such damages as are here claimed are allowable on the issue of debt or no debt. It is not necessary to decide whether they are too- remote and, therefore, may not be deducted from the debt, because aside from that point, there is nothing to indicate they were to1 be anticipated when the contract was made as a result of its breach in view of the peculiar situation and circumstances of the defendant. There is no evidence whatever that the plaintiff knew the defendant had rented land and was dependent on the advances he was to make to cultivate it, or that plaintiff was acquainted with the peculiar condition of defendant’s agricultural interests in any respect, or contracted with reference to' defendant’s special circumstances. This being so, the damages arising from plaintiff’s alleged breach of contract due to' circumstances peculiar to the defendant are not recoverable, and, therefore, cannot be taken into consideration in determining whether the defendant owed a debt secured by the chattel mortgage. The following statement of the principle under which the case falls is taken from' Hadley v. Baxendale, quoted with approval in Sitton v. McDonald, 25 S. C., 68, 71: “Damages which would not arise in the usual course of things from a breach of contract; but which do arise from circumstances peculiar to the special case, are not recoverable, unless the special circumstances are known to' the person who has broken the contract.” Colvin v. Oil Company, 66 S. C., 61, 44 S. E., 380; Hays v. Telegraph Co., 70 S. C., 16.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.

Ti-ie Ci-iiee Justice did not participate in this opinion because of illness.  