Bank of Malvern v. Burton

• Decision Date: 10 February 1900
• Citation: 55 S.W. 483,67 Ark. 426
• Parties: BANK OF MALVERN v. BURTON
• Court: Arkansas Supreme Court

55 S.W. 483

67 Ark. 426

BANK OF MALVERN v. BURTON

Supreme Court of Arkansas

February 10, 1900

Appeal from Hot Springs Circuit Court, ALEXANDER M. DUFFIE, Judge.

Reversed and remanded.

E. H Vance, Jr., for appellant.

It was error to strike appellant's reply from the files. 44 S.W 393; 99 N. Car. 107. The usury, if any, in the renewal notes did not affect the consideration, which was free from usury. Hence the pleadings should have been considered amended by the proof, and judgment given for the original debt. 29 Ark 323; 42 Ark. 57; 55 Ark. 143; 56 Ark. 334; 35 Ark. 217; 98 N. Car. 107; 27 Am. & Eng. Enc. Law, 946-7.

Jesse B. Moore, for appellee.

The court was correct in sustaining the motion to strike. 33 Ark. 56, 593; 44 Ark. 293; 48 Ark. 238. Since the first note was usurious and void, the debt is destroyed. 53 Ark. 271; 56 Ark. 143, 146. The court below had the right to disregard incompetent and irrelevant evidence, and it was its duty to do so. 42 Ark. 310; 4 Ark. 251. It was discretionary with the court to treat the complaint as amended or not. 22 Ark. 164; 23 Ark. 735; 54 Ark. 444. The evidence as to the debt was irrelevant, under the pleading. 46 Ark. 96.

BATTLE J. RIDDICK, J., absent.

OPINION

BATTLE, J.

The Bank of Malvern sued J. W. Burton and William Kilpatrick, in the Hot Springs circuit court, upon a note executed by them to it for the sum of $ 349.50, bearing date the 12th day of May, 1896, and due ninety days after date. The defendants answered, and pleaded usury. The plaintiff filed a reply, which, on motion of defendants, was stricken from the files of the court. As it was not restored to record by bill of exceptions, it is no longer in the case.

The cause, both parties consenting, was submitted to the court sitting as a jury.

J. W Burton testified as follows on his own behalf: "I am one of the defendants in the above-entitled cause, and I executed the note sued on herein. The note was due ninety days from its date. I paid $ 16.00 interest in advance for the extension of the note, which note was for $ 349.50, dated May 12, 1896, which interest was in excess of ten per cent. per annum, and was an intentional usurious charge of interest for the ninety day's forbearance, and was agreed to by the parties. The note on its face drew ten per cent. per annum from maturity until paid." Cross-Examination. "I did not get any money from the Bank of Malvern. The note sued on was given for another that I had in the bank. I never did get a dollar from the bank. This note, the one sued on herein, was given for a former note, and is for the same amount that the original note was given for, exactly. I think my first dealings with the Bank of Malvern were in 1894. I do not know how many times I have renewed the note. The first year I gave it it ran for one year; the next year W. W. Dutton and T. R. McHenry were on the note as sureties. I do not know where the old notes are. I could only find one of them, and Mr. Kilpatrick, the co-defendant, was my surety thereon. The note sued on herein is a renewal of the note I found, and is for the same amount. The first note I gave the Bank of Malvern was for $ 349.50. I do not know how much I have paid on it since. I think I have paid $ 27.10 at two different times and $ 26.00 is my recollection. The note was first to run one year, but the interest was to be paid every four months, and the interest for the first year amounted to $ 65.00 to $ 75.00. I do not remember the time I paid the first payment. I gave a note to R. H. Hurley for an interest in a horse, and he transferred said note to the Bank of Malvern. Robert W. Baker had also given his note in favor of said R. H. Hurley for $ 217.00 for an interest in the same horse, and I assumed the payment of the Robert W. Baker note to the Bank of Malvern, the same having been previously transferred to the bank by said R. H. Hurley. My note given to the said R. H. Hurley was for the same amount as the Robert W. Baker note; but I had paid over $ 100.00, and there was a balance due on my note and Robert W. Baker note of $ 349.50, for which amount I executed my note to the Bank of Malvern, with T. R. McHenry and W. W. Dutton as sureties on December 24, 1894, which note has been renewed from time to time, each time for the same amount, but I would have to pay interest, each time for the renewal of the same, and, as well as I can remember, I have made the following payments: Between $ 25 and $ 27 the first payment; about the same the second time; and about the same the third time. I cannot remember how many times I renewed said note, but each time I paid usurious interest, more than 10 per cent, per annum, under agreement with the bank. Re-Direct. The note...