Morgan v. King

91 So. 30 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

This is a replevin suit begun in the circuit court of Quit-man county by the appellant, Morgan, as trustee in a chattel mortgage in favor of Mathews & Mallory, engaged in planting, against the appellee, Alf King, their tenant, for certain personal property covered by said mortgage. There was a trial and directed verdict in favor of appellee and judgment accordingly, from which appellant prosecutes this appeal.

The action of the court in directing a verdict for ap-pellee is assigned as error. Therefore, in considering the questions involved, the evidence should be treated as establishing, either directly or by reasonable inference, every ‘fact favorable to appellant’s case.

The appellee’s defense was that there was nothing due on the mortgage indebtedness at the time the suit was instituted. The mortgage in question contains the usual supply clause used in chattel mortgages between supply merchant and customer. The indebtedness secured was evidenced by the customary running supply account between landlord and tenant, which showed a balance due of four hundred and eighty-eight dollars and ninety cents.

At the conclusion of the evidence appellee’s attorney moved to exclude: First, because the account evidencing the mortgage indebtedness was not itemized; second, because the evidence showed that more than twenty per cent, per annum had been contracted for or received on said indebtedness; and, third, because the accounts of appellee’s tenants, Jamison, Holt, and Taylor had been improperly charged to appellee.

The account in question was introduced in evidence. It contains several charges which were not itemized. To sustain tbe contention that for this reason the account was not evidence of the mortgage indebtedness, appellee relies on Pipes v. Norton, 47 Miss. 61, and Tierney v. Duffy, 59 Miss. 364. We do not think these cases have any application to the facts of the present case. Those were actions at law, based on open accounts in which a bill of particulars was required. The question in each of those cases was the sufficiency of the bill of particulars. In the case here no bill of particulars was asked for by the appellee nor required by the court. And, furthermore, where a bill of particulars in the form of an itemized account is required, the fact that such an account is not properly itemized does not go to its competency as evidence, but to its value. The question of the amount of the mortgage indebtedness unpaid was determinable in this case, not alone by the account, but by all the evidence in the case.

Does the evidence in this case show without conflict that the mortgages, Mathews & Mallory, contracted for or received on any of the items of the account in question more than twenty per cent, per annum? The evidence does show beyond question that on all money advanced by the beneficiaries in said mortgage they charged ten per cent, interest* straight, regardless of the time the indebtedness had to run, and that in several- instances these advances of cash were to be repaid in a shorter time than six' months. Therefore it cannot be questioned that as to such items the appellee charged more than 20 per cent, per annum.

Chapter 229, Laws of 1912, section 2075, Hemingway’s Code, contains this provision:

“If a rate of interest is contracted for or received” (italic ours) “directly or indirectly, greater than twenty per cent, per annum, the principal and all interest shall be forfeited, and any amount paid on such contract may be recovered by suit.”

As held in Byrd v. Newcomb Lumber Co., 118 Miss. 179, 79 So. 100, this statute is highly-penal, and must be strictly construed against the person invoking it, and that it cannot be invoked except where it is clear and certain from the particular facts of the case that more than twenty per cent, per annum was either contracted for or received. It is not sufficient that the creditor has charged more than twenty per cent, per annum; he must have contracted for it or received it. We do not think the evidence in this case is at all clear that the beneficiaries in this mortgage either contracted for or received interest in violation of this statute. Under the evidence in the record this was a question for the jury.

The accounts of appellee’s tenants, Jamison, Holt, and Taylor, represented as much and probably more than the balance claimed to be due on the mortgage indebtedness. Therefore, if their accounts were improperly charged to ap-pellee, it would follow that the mortgage indebtedness to Mathews & Mallory had been discharged. The evidence is conflicting and uncertain as to whether the beneficiaries in the mortgage charged these accounts to the appellee without any authority, or whether the credit on which these accounts were based Avas originally extended to the appellee. If the latter be the fact, then the contract Avould not come within that clause of the statute of frauds (section 4775, Code of 1906; section 3119, HemingAvay’s Code) Avhich provides that no action shall be brought Avhereby to charge a defendant upon a promise to answer for the debt of another, unless, such promise be in writing, signed by the party sought to be charged. It was settled a long time ago in this state that if the credit was originally extended to the party sought to be held, and not to the party who received the goods, the contract does not come within the said provisions of the statute of frauds. Wallace v. Wortham, 25 Miss. 119, 57 Am. Dec. 197 ; Hendricks v. Robinson, 56 Miss. 694, 31 Am. Rep. 382. We therefore conclude that under the evidence this Avas a case for the jury.

Reversed and remanded.