Beach v. Kirk

• Decision Date: 16 November 1938
• Citation: 189 So. 263,138 Fla. 80
• Parties: BEACH et ux. v. KIRK.
• Court: Florida Supreme Court

189 So. 263

138 Fla. 80

BEACH et ux. v. KIRK.

Florida Supreme Court

November 16, 1938

On Rehearing June 2, 1939.

Bill by Andrew Kirk against Julian J. Beach and wife to foreclose mortgage. From a decree for plaintiff, defendants appeal.

Reversed and remanded.

BROWN and CHAPMAN, JJ., dissenting from opinion on rehearing. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Shipp Evans & Kline, W. H. Burwell, and Van C. Swearingen, all of Miami, and Whitfield & Whitfield, of Tallahassee, for appellants.

Roscoe Brunstetter and Fred H. Kirtley, both of Miami, for appellee.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice TERRELL, Mr. Justice WHITFIELD and Mr. Justice THOMAS are of the opinion that the decree of the Circuit Court should be reversed, while Mr. Justice BROWN and Mr. Justice BUFORD and Mr. Justice CHAPMAN are of the opinion that the said decree should be affirmed. When the members of the Supreme Court sitting six members in a body, and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed; therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

TERRELL C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, JJ concur.

CONCURRING

CHAPMAN, Justice.

On December 26, 1935, plaintiffs filed in the Circuit Court of Dade County, Florida, their bill of complaint in the usual form to foreclose a mortgage on real estate located in said County, and sought a decree for the sum of $11,500 and accumulated and unpaid interest. An answer was filed alleging that the plaintiffs reserved the sum of $1403.78 and the delivery of a note in the sum of $11,500 and a mortgage securing the same and that plaintiffs wilfully and knowingly charged, reserved and exacted a rate of interest greater than 10% per annum and that the penalties exacted therefor by Sections 6938 and 6939, C.G.L., and the decisions of this Court, doubles the amount of $5,198.49 wilfully charged, reserved, taken and collected of and from the defendant, and when credited as against the original indebtedness of $10,000 there remains due to the defendants the sum of $396.98 as a balance by the plaintiffs. The cause was referred to a Special Master, who heard the testimony adduced by the parties and reported his findings to the Chancellor below to the effect that the defendants failed to sustain the answer by the evidence as required by law and the report was ratified and confirmed by the Chancellor and a final decree was entered for the plaintiffs for the sum of $11,500 and interest, and an appeal was taken therefrom by the defendants to this Court. The parties hereto will be referred to in this opinion as plaintiffs and defendants as they appeared in the court below.

It is contended by counsel for appellants that the evidence preponderates in their favor, and that it is clearly and fully established that the plaintiffs wilfully and knowingly charged, reserved and exacted $1403.78 contrary to Section 6938, C.G.L., which legally amounts to usury and which is treated in their brief thusly:

'The soul and character of the usurer has been immortally portrayed by the pen of Shakespeare in his character of Shylock. Nothing can be added to it, nothing can be taken from it. It is the soul of the usurer stripped of all concealment, so loathsome and repulsive that all organized society has branded it as an outlaw. It is without human sympathy, and devoid of mercy. Under all decent civilized governments, its spirit in any contract blights the contract and condemns it as illegal and contrary to public policy. It has lived through the ages and it lives today in the heart and soul of those who would profit by the adversity of the unfortunate, taking advantage of their misfortunes to strip them clean without sympathy and without mercy.

'To our knowledge, neither history, or tradition reveal a single case in which a usurer has ever yet admitted his transgression and accepted the penalty of his wrongdoing.

'The spirit of the usurer that drives its bargain against its unfortunate victim never relents, but always demands the collection of its pound of flesh until stayed by the hand of the law. No field of human conduct has produced more varied and subtle schemes and devices to conceal the truth and prevent detection than have the activities of the usurer. To prove his motives and his purposes is often most difficult, sometimes impossible, and through the subtlety of the scheme devised, the usurer often escapes and his victim is left stranded and without remedy. For this reason and in this common knowledge, our legislators, for generations, have sought to write and rewrite usury statutes broad enough and strong enough and clear enough to prevent the pernicious practice and to penalize the usurer. We believe that the statutes of Florida are no exception to this rule and that the scheme here concocted, as plainly revealed by this record, condemns the conduct of the appellee and demands of him the restoration provided in the statute.'

The evidence shows that in November, 1928, the Dade County Security Company, then in process of liquidation, held mortgages of the defendants in the sum of $14,174.06 and that the mortgages had matured and the owner demanded payment. It offered the defendants to settle the mortgages for the sum of 50% in cash and the remaining amount of 50% to be paid with capital stock at par of the Security Company. The defendant, J. J. Beach, contacted Mr. Chase, a real estate agent of Miami, and agreed to pay him a fee if he would or could contact some person able and willing to refinance these mortgages. The agent Chase went to the plaintiff and after some little time he agreed to and did finance the mortgages held by the Security Company. The agent Chase represented J. J. Beach and not the plaintiffs. The closing of the loan was handled by the agent Chase and not the plaintiff, who at the time was sick at his home but was convalescing. He only signed the checks necessary to pay the Security Company's mortgages. He talked to the defendants but one time prior to making the loan. The Security Company's mortgages totaled $14,174.06 and the plaintiff advanced to the Security Company and the defendant the sum of $10,096.22 and received a note for the sum of $11,500 and the sum of $1,403.78 not received by defendant is accounted for thusly: The amount due the Security Company by the defendants was $14,174.06, and that the capital stock of the Security Company could be purchased on the market for around 42% of the par value, but when presented to the Security Company would be accepted at par value up to 50% plus 50% in cash for the payment of defendants' mortgages.

It is readily seen that the defendants would profit by this method by the difference between $10,096.22 advanced by the plaintiffs to the defendant and the sum of $14,174.06, the amount of the mortgages held by the Security Company. The amount claimed and asserted here as usury in the sum of $1,403.78 is the amount that the plaintiff was allowed to share as part of the savings to the defendants by the purchase of the capital stock of the Security Company. It cannot be overlooked that the defendants obtained the lion's share of this savings when it was accomplished by the use of the plaintiffs' money. Hon. T.J. Dowdell, the Special Master appointed by the lower court to her the evidence and to make findings, reported that the plaintiffs did not wilfully and knowingly charge, reserve or exact a rate of interest of more than 10% per annum as contemplated by Section 6938, C.G.L. The report was approved and confirmed.

It has been held by this Court that a defendant setting up the defense of usury had the burden of proof, which is the burden of proving the essential elements of usury. See Tucker v. Fouts, 73 Fla. 1215, 76 So. 130, L.R.A.1917F, 916; McCullough v. Hill, 105 Fla. 680, 133 So. 846, 145 So. 259; Phillips v. Lindsay, 102 Fla. 935, 136 So. 666.

In the case of Clark v. Grey, 101 Fla. 1058, 132 So. 832, this Court held [page 834]:

"There are four requisites of a usurious transaction: '(1) There must be a loan, express or implied; (2) an understanding between the parties that the money lent shall be returned; (3) that for such loan a greater rate of interest than is allowed by law shall be paid or agreed to be paid, as the case may be; and (4) there must exist a corrupt intent to take more than the legal rate for the use of the money loaned.' Doster v. English, 152 N.C. [339], 341, 67 S.E. [754], 755.

"'The corrupt intent mentioned in the books consists in the charging or receiving the excessive interest with the knowledge that it is prohibited by law and the purpose to violate it. Our statute makes it usury if the interest is knowingly charged or received at the unlawful rate."'

See Chandler v. Kendrick, 108 Fla. 450, 146 So. 551; Benson v. First Trust & Savings Bank, 105 Fla. 135, 134 So. 493, 142 So. 887, 145 So. 182; Jones v. Hammock, Fla., 179 So. 674.

The practice of the Chancellor in making findings of fact is not only commendable, but tends generally to facilitate the disposition of cases in the appellate Court. These findings serve as a ground for the proper conclusions to be reached. See Day v. Weadock, 101 Fla. 333, 134 So. 525. It has been held by an unbroken line of decisions of this Court that the findings of fact as made by a Chancellor...