Brewer v. Jones

• Decision Date: 12 March 1923
• Docket Number: 22941
• Citation: Brewer v. Jones, 131 Miss. 545, 95 So. 519 (Miss. 1923)
• Court: Mississippi Supreme Court
• Parties: BREWER et al. v. JONES

95 So. 519

131 Miss. 545

BREWER et al. v. JONES

No. 22941

Supreme Court of Mississippi

March 12, 1923

1 USURY. Usurious interest may be recovered in suit by payor against payee.

Usurious interest, because of the express permission so to do given by section 2678, Code 1906 (Hemingway's Code, section 2075) may be recovered by suit by the person paying it from the person to whom it was paid.

2. LIMITATION OF ACTIONS. Of interest on paid note payment on principal of remaining debt and not subject to bar by limitations.

The debt due a lender by a borrower, though evidenced by several promissory notes, is the amount of the money borrowed plus interest thereon, and the payment of one of the notes is a payment on the whole debt, and any interest collected by the lender when one of the notes is paid is by operation of law a payment on the remaining notes, and is not subject to the bar of any statute of limitations.

HON. T P. GUYTON, Chancellor.

APPEAL from chancery court of Carroll county, HON. T. P. GUYTON Chancellor.

Suit by Ike Jones against W. H. Brewer and others. From a decree overruling a demurrer to an original and supplemental bill and a motion to dissolve a preliminary injunction granted thereon, defendants appeal. Affirmed, and remanded, with leave to defendants to answer within thirty days after filing mandate in court below.

Affirmed and remanded.

Monroe McClurg, for appellant.

Counsel for appellant holds to his first theory and submits that counsel for appellee's first impression that the five dollars overcharge was negligible, is correct. It is believed that this honorable court has but to look at the original transactions as disclosed by the notes and trust deed to find that it was not all worked out and concluded in a day and prefer a presumptive practical business reason for the inclusion of that five-dollar item which taken by itself would be dismissed as de minimis. 39 Cyc. 956, par. V, disposes of it in the following language: "When note bears interest from a date prior to that of its execution--The fact that an obligation for the repayment of money bears interest from a time prior to its date does not render the contract usurious on its face. Since there is a presumption in favor of the validity of the contract, it will be assumed in the absence of proof to the contrary that the circumstances attending the execution of the contract justify its form. It may well be that the note or other writing merely gives written form to a previously existing debt, and probably includes unpaid interest."

The doctrine of in pari does provide for favor in certain cases to the least guilty, and that depends upon the particular circumstances of each case. Confessing as the demurrers do, that there is usury where properly pleaded, yet the facts in this case shown by appellee's bills, often repeated, and sworn to by them, and as often heretofore argued, show appellant the least guilty violator of the law forbidding usury.

The appellees were in the wrong more deeply than Brewer because of their lack of common fairness to propose a settlement with him before suing, the bill alleges none. The bill alleges no reasonable cause of beginning the suit. See 13 C. J., page 498, cited at bottom of counsel's brief. Rideant v. Mars, 99 Miss. 199, relied upon by counsel, does not support them in the instant case. The facts are quite apart.

Like liberty, many crimes have been done in the name of "public policy." It may serve the convenience of this honorable court to examine the collation of definitions of "public policy" in 4 Words & Phrases (2. Ed. 1914), page 25. The one taken from Story on page 26, first column, and apparently most generally approved is here quoted: "Public policy is a vague expression. Story in his work on contracts says: 'It has never been defined by the courts, but has been left free of definition in the same manner as fraud. It may be safely said however, that wherever any contract conflicts with the morals of the time and contravenes any established interests, of society, it is void as being against public policy.'" Citing many authorities.

And the one at bottom of first column (page 27) is that: "It must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of "public policy" unless it clearly appear that they contravene public right or the public welfare." Citing many authorities.

There are grounds and reasons therefore, why the moral character of the parties may not be investigated in a case like this to break the balance of in pari in the appellant's favor by stressing the self-confessed moral turpitude as distinguished from moral turpitude in a legal sense, by its inherent baseness, or vileness, shameful wickedness; depravity."

"Moral turpitude" is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Though the point at which an act begins to take on the color of turpitude is not very definitely marked, yet the commission of the crime of larceny whether grand or petit, undoubtedly involves "moral turpitude" as that term is commonly used. In re Henry, 99 P. 1054, 1055, 15 Idaho 755, 21 L. R. A. (N. S.) 207; 3 Words & Phrases, page 444.

Counsel urge that the usury has never been purged at any time and the continuity of the whole matter as a single transaction. That is no answer to the defense of the positive waivers shown, or the in pari delicto or the base corruption shown or the all sufficient answer of no equity. Nor is counsel's statement hardly supported when they say at page 13 of their brief, "instead of retaining out of the loan some of the proceeds, Brewer was sharp enough to get this into a new note and into a separate check," etc. That comes with ill grace from Mr. Jones. The rule announced by Mr. Chief Justice SMITH in Kimbrough v. Carter, 92 So. 228, governs until a restatement is ordered.

VII. STATUTE OF LIMITATIONS. Judge W. C. MCLEAN'S most admirable brief in Bank v. Fraser, 63 Miss. 231, will receive the great consideration of this court, later one of its able and brilliant associates. That case was before this court at the October Term, 1885, antedating by five years the Constitution of 1890, in convention that adopted it; he was a leading member, and from twenty-seven to twenty-nine years before the enactment of the usury laws under consideration in this case, and before a general resetting by the negotiable instruments law. Of course, the authorities cited by him are much older; much water has passed under the mill since then, as evidenced by sixty or more books reporting most of the cases tried and decided here. The progress in jurisprudence and all of the arts and sciences is beyond the limits of all imagination.

There can be no substantial difference in charging or receiving usury in one note or a series of notes. Not how, but was it done. There were three separate and distinct major transactions and contracts here evidenced by as many different securities. All discharged save the first. Even in usury the intention of the parties, good or bad, is a chief desideratum. If the Jones intentionally, or by fair implication, waived claim to usury by their many payments and frequent settlements they must stand to it. The record speaks against them on that question. There is abundant authority for this of which the next citation by counsel, 13 A. L. R. points out.

Counsel appeal to the "paramount law" at page 16 of their brief, merely another statement for "public policy" and cites 13 A. L. R. 1233-1244, a Michigan case. They relied chiefly on that case in the court below and to their good purpose in convincing the chancellor to overrule the demurrers. It is a fair sample of the cases cited in their brief, in fact of all cases where the relief is sought and suit begun by a really imposed upon, distressed borrower against a Shylock money lender pressing a vicious foreclosure, or a real unconscientious advantage of the weal. That case was copied from 27 R. C. L. 271, cited in our original brief, but noted here more specifically:

"Usury--Shield but not Sword. One who voluntarily pays usury interest may not maintain a suit to recover it, while one against whom a usurious contract is sought to be enforced may avail himself of the statute as a defense." 13 A. L. R. 1233. Is not that declaration of the law of waiver as potent, powerful and commanding as any other announcement contained in the opinion? Are not the two principles one for appellant and one for appellees, in pari arguendo?

The consideration of the whole of all the bills discloses that the Jones' were in property and intelligence amply able to take care of themselves and not so despicably cowardly as to fear ruin or wrong if in fact and real truth Brewer had made such statement. That, too, is the only oppression for none other is set up in the bills. The appeal to the figures for a showing will not do even to help out the vagueness and indefiniteness; the bills themselves differ as to them; the first alleges the balance over is two hundred thirty-three dollars and thirty-three cents and second alleges two hundred fifty dollars. There are other minor contradictions.

They were neither afraid or oppressed when they started this litigation or they would have in some fair statement shown the reason for it; they simply thought the time had arrived to strike a long-thought-out purpose to use his money without paying...