77 So. 148 | Miss. | 1917
delivered the opinion of the court.
The appellee, J. D. Gambrell, filed a bill in the chancery court of Smith county against J. W. Meadows and the Hebron Bank for .an accounting. The bill alleged that Meadows and Gambrell had been engaged in the sawmill business as partners, and that they did their banking business with the appellant bank. It was also alleged in the bill that the bank and the defendant Meadows conspired to defraud the complainant out of certain moneys; further, that the bank had charged individual checks of Meadows to the partnership account and made other erroneous charges on the partnership and individual account of complainant Gambrell. It was alleged that the bank had charged the appellee individually and the partnership on notes, invoices, and overdraft accounts ten per cent, usurious interest. It was also alleged that the bank had failed to credit the partnership account with about sis hundred dollars, being twenty per cent, of the proceeds of sales of certain cars of lumber, and that the account was entitled
The chancellor found that Gambrell was entitled to recover of the bank as usurious interest charged him by the bank two hundred and forty dollars and thirty-two cents on the invoice account and one hundred and seventeen dollars and forty-seven cents on the overdraft account, both partnership accounts. We have carefully searched the record for testimony sustaining this finding of fact. The appellee, Gambrell, as- an exhibit to his testimony, filed certain slips showing that the bank had charged him one hundred and seventeen dollars and forty-seven cents interest on invoice and overdraft accounts. He then stated generally that he had examined the books of the bank, and. it was his best judgment that the overcharge or the usurious interest charged on both these accounts amounted to two hundred and forty dollars and thirty-two cents. In other words, the appellee, Gambrell, stated in an indefinite way that he thought the usurious interest charges on both invoice and overdraft accounts amounted to two hundred and forty dollars and thirty-two cents. The chancellor, however, rendered a decree in his favor for the two hundred and forty dollars and thirty-two cents and the one hundred and seventeen ■ dollars and forty-seven cents. The item of one hundred and seventeen dollars and forty-seven cents interest on
There is also a finding in favor of the appellee .of three hundred dollars as one-half of a twenty per cent, deposit retained by the bank from proceeds of sales of cars of lumber of the partnership. The chancellor found that the bank had not given the partnership credit for six hundred dollars due it as' a balance of twenty per cent, retained by the bank until a full settlement had been had with the purchasers of this lumber. It seems to have been the custom, when the partnership shipped lumber, for the bank to at once credit their account with eighty per cent, and retain twenty per cent, of the price until the purchasers had finally settled for the lumber. When the lumber was finally paid for, then the twenty per cent, would be credited to the partnership account. The testimony upon which the chancellor found that the partnership was due this six hundred dollars was that of the appellee, Gambrell. He stated that he had looked at the books of the bank and tried to ascertain as best he could what amount, if any, was due them on the twenty per cent, retained by the bank, and that according to his best judgment, he thought it was about six hundred dollars, but that the
There are other items of usurious interest charged the partnership by the bank which are found in favor of the appellee. It is' contended by the appellant that these were not usurious charges, because the cashier of the bank testified that they merely overlooked the law making it usurious interest to charge ten per cent. The testimony shows that ten per cent, interest was charged the partnership. The ignorance of the law of the bank officials or their temporarily overlooking the law is no excuse for this charge. It is clearly usurious interest, and the appellee is entitled to recover it back. It is further claimed by the appellant that the appellee should not be allowed to recover the entire interest charged to the partnership account. The testimony, however, shows that in the settlement and dissolution of the partnership of Meadows and Gambrell the part
Before the filing of this bill in the chancery court the appellant.bank, which held a deed of trust on certain yoke of oxen, claimed to be the property of Gambrell, through its trustee, had instituted a replevin suit in the circuit court to recover possession of them. The amount due under the note and deed of trust is about seven hundred and seventy-five dollars. The bill of the appellee asked the chancery court to take jurisdiction of all equities and matters of accounting between the parties to the suit. The chancellor found that the amount due the bank by appellee under this note secured by the deed of trust was seven hundred and seventy-five dollars and interest, but he failed to allow the appellant to set off this amount due him against the seven hundred and seventy-eight dollars the chancellor found appellant was due appellee. We think the court should have allowed any amount due appellant as an offset against any amount due appellee. Either party could then plead in the circuit court, where the replevin suit was pending the decree of the chancery court relating to this matter.
The decree of the lower court will be affirmed in all of its findings except those above specifically enumerated and discussed. As to them, namely, the item two hundred and forty dollars and thirty-two cents, interest on invoice account of Meadows and ■ Gambrell, the item one hundred and seventeen dollars and forty-seven cents interest on overdraft account of Meadows and Gambrell, the three hundred' dollar item, being one-half of twenty per cent, alleged to have been retained by
Reversed and remanded.
