307 S.W.2d 73 | Ark. | 1957
Appellant, Ed Ward, filed this suit to set aside a conditional sales contract on the grounds of usury. Ward purchased a Dodge truck from the Louis George Motor Company, according to his allegations, for the sum of $2,580. He traded in two trucks for the new one, and contends he was allowed $900 for same, less a debt of $500 owed on the trucks to the Planters Bank, which was paid off by George. Ward signed a conditional sales contract for $2,831.35, which was assigned to appellee, Universal C.I.T. Credit Corporation. Appellant contends the interest amounted to $376.20, and that said amount was usurious, over and above 10 per cent per annum, to the extent of $143.79. Appellee contends that the parties traded for a “difference”, ($1,818 plus the $500 due the bank)
For reversal, appellant first contends that more than 10 per cent interest was charged under the contract, and same accordingly should be cancelled as usurious. Ward and George relate an entirely different version of the transaction. Ward simply contends that the purchase price of the Dodge truck was $2,580, less a down payment of $400, (trade-in of his trucks) plus insurance charge of $275.15, leaving a balance of $2,455.15 to he financed in 24 monthly payments. Subtracting this figure from the conditional sales contract of $2,831.35 leaves a finance charge of $376.20. Under this theory, the contract would be usurious. George testified that he and Ward (who was a part-time salesman for the George Motor Company) reached an agreement whereby Ward would trade in the trucks, and pay a balance of $1,818. $523.88
The answer to the litigation therefore resolves itself into the simple question of which evidence the ( liancellor accepted. Both versions of the transaction cannot be correct. This court has held many times that it will not disturb the findings of the Chancellor unless they are against the preponderance of the evidence. England v. Scott, 205 Art. 47, 166 S. W. 2d 1014; Kelker v. Payton, 227 Ark. 369, 298 S. W. 2d 704. Appellant’s evidence, as to the transaction, consisted of his own testimony, and the bill of sale. Appellee’s evidence, as to the transaction, consisted of the testimony of George, Eva Langston, bookkeeper for George Motor Company, (whose testimony verified George’s statement that Ward asked that the sale price be reduced in order to save sales tax) and a copy of invoice showing the price to be $3,218. We are unable to say that the court’s findings were contrary to the weight of the evidence.
It is next contended that the judgment should not have been rendered against the sureties in the amount of $2,739.30, even though judgment for such amount be entered against Ward, for the reason that ap-pellee, in its petition for order of seizure, only alleged the value of the Dodge truck to be $2,000; it is insisted that the liability on the bond is limited to that extent, though it does provide that Ward * * shall perform the judgment of the court * * We dispose of this contention by pointing out that the sureties did not join in this appeal nor give any notice as required by statute. Section 27-2110
“Parties interested jointly, severally, or otherwise in a judgment or decree may join in an appeal therefrom; or, without summons and severance, any one or more of them may appeal separately, or any two or more of them may join in an appeal.”
Ward did separately appeal, but the sureties, who had the like right, failed to do so. The sureties were parties; they sought separate and additional relief from that sought by Ward, averring that their liability did not extend to the full amount of indebtedness claimed by appellee. This contention was presented to the trial court. The Messrs. Lapides, in signing supersedeas bond (to supersede the judgment against them), described themselves as “appellants”; yet no notice of appeal was ever filed. The filing of notice of appeal within the time prescribed by law is a jurisdictional prerequisite to the appeal. General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. There is, accordingly, no appeal before us from the sureties to be passed upon.
The judgment of the Chancery Court is, in all respects, affirmed.
The amount due the bank was actually $523.88, but appellant paid the $23.88 in cash.
Payment scale, covering two year period, called for four payments at $90.58; one at $748.01; nineteen at $90.58.
See footnote 1.
George had sent C. I. T. a worksheet with the figure $3,218 and showing a trade-in of $1,400 as a boost of both prices in order to give Ward enough for a down payment.
Act 555 of 1953.