Byrd v. Newcomb Mill & Lumber Co.

• Citation: 79 So. 100,118 Miss. 179
• Decision Date: 22 April 1918
• Docket Number: 20085
• Parties: BYRD ET AL v. NEWCOMB MILL & LUMBER CO
• Court: Mississippi Supreme Court

79 So. 100

118 Miss. 179

BYRD ET AL v. NEWCOMB MILL & LUMBER CO

No. 20085

Supreme Court of Mississippi

April 22, 1918

Division A

APPEAL from the chancery court of Yazoo county, HON. O. B. TAYLOR Chancellor.

Suit by the Link Newcomb Mill & Lumber Company against A. W. Byrd wherein a writ of sequestration was issued and levied, and defendant gave a forthcoming bond for the lumber levied on with J. W. McClintock and J. B. Daniels as sureties. From a decree for complainant, defendant appeals.

Laws 1912, chapter 229, section 1, directed to be reported, reads as follows: "The legal rate of interest on all notes accounts and contracts shall be six per cent. per annum; but contracts may be made, in writing, for payment of a rate of interest as great as eight per cent. per annum. And if a greater rate of interest than eight per cent. shall be stipulated for or received in any case, all interest shall be forfeited, and may be recovered back, whether the contract be executed or executory. If a rate of interest is contracted for or received, 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."

On May 6, 1916, the following contract was entered into by and between Link-Newcomb Mill & Lumber Company, a partnership composed of M. T. Link and W. H. Newcomb, and A. W. Byrd, which contract is as follows:

"Contract.

"Bentonia, Miss., May 6, 1916.

"A. W. Byrd, Esq., Bentonia, Miss.--Dear Sir: With reference to our financing your milling operation near Bentonia, we make you the following proposition, viz:

"We will advance you once a month, or every three weeks if preferable, an amount not exceeding ten dollars per thousand feet, for all log run No. 2 common and better lumber, of the various kinds that is now on stick in your yard, and will have been put on stick since previous advance, the amount to be evidenced by a report from you of the slip scale, of the lumber at the time each advance is made.

"The total advances contemplated under this arrangement is at no time to exceed ten thousand dollars, and the agreement will expire by limitation December 31, 1916, unless sooner abrogated by mutual agreement.

"The title to this lumber warranted free from all incumbrances and is to remain in you, and the movement to railroad, sales and all things pertaining to the marketing of the lumber is to be handled by you with our knowledge and consent, but it is expressly understood and agreed that this advance shall constitute a first lien on the lumber, and when same is sold the proceeds of any and all sales are to be remitted direct to us by the purchaser, for the credit of your account, until such time as all advances and compensation for said advances had been liquidated.

"Said lumber is to be covered with insurance to at least the extent of twelve dollars per thousand feet, said insurance to be made payable to us in the event of a fire loss.

"Our compensation for the advance is to be ten per cent. flat on all advances made, regardless of their form, advances to be evidenced by open account kept by us.

"All lumber covered by these advances to be marketed within twelve months from date of advance.

"Your acceptance of the above will constitute the agreement between us. Yours truly, LINK-NEWCOMB MILL & LUMBER Co., by M. T. LINK.

"Accepted: A. W. BYRD.

"Witnesses as to signature: J. O. DAY. G. W. WARD."

Under this contract the Link-Newcomb Mill & Lumber Company commenced making advances to Byrd on May 6th the date of the contract, and made advances thereunder until February 3, 1917, the total advances made thereunder amounting to eleven thousand, seven hundred and twenty-nine dollars and ninety-one cents. Up to February 3, 1917, Byrd had made payments under the contract amounting to four thousand seven hundred and fifty-six dollars and two cents.

On February 9, 1917, Link-Newcomb Mill & Lumber Company filed their bill against A. W. Byrd in the chancery court of Yazoo county alleging that they had, under said contract, which was filed as Exhibit A to the bill, obligated themselves to advance to defendant, Byrd, large sums of money and did advance to him the sum of eleven thousand, seven hundred and twenty-nine dollars and ninety-one cents, as evidenced by an itemized account filed as Exhibit B to the bill, and that they received in accordance with said agreement the proceeds of certain lumber sold by Byrd, amounting to four thousand, seven hundred and fifty-six dollars and two cents, leaving unpaid and owing by defendant to complainants the sum of six thousand, nine hundred and seventy-three dollars and eighty-nine cents.

The bill alleged that under the agreement it was expressly stipulated that the complainants were to have a lien on the lumber as manufactured to secure the amount of their advances, and they prayed for a writ of sequestration. The writ was issued and levied upon certain lumber, and the defendant, Byrd, gave a forthcoming bond for the lumber levied upon, with J. B. Daniels and J. W. McClintock as sureties.

The defendant answered and made his answer a cross-bill, alleging in the answer and cross-bill that the contract was usurious, and that a rate of interest in excess of twenty per cent. per annum had been charged, or received, by the complainants, and prayed that the contract be declared usurious, and that he recover from the complainants the amount which he had paid to them.

The cross-defendants answered the cross-bill, and denied that they had contracted for or received a rate of interest in excess of twenty per cent. per annum. At the trial of the case the defendant asked and obtained leave to amend his answer and cross-bill by substituting for the words "charged and received" wherever said words appear, the words "contracted for or received."

At the conclusion of the argument the court took the case under advisement, and rendered a decree therein on the 9th day of July, 1917, in favor of the complainants against defendant, A. W. Byrd, and the sureties on his bond, for the sum of four thousand, three hundred and sixty-nine dollars and seventeen cents, with legal interest thereon from the date of the decree until paid, together with all costs, etc., and from this decree the defendant and the sureties on his forthcoming bond appealed to this court.

Affirmed.

Barbour & Henry, for appellant.

The statute invoked may be a hard one, but that is no concern of this court, except for the purpose of determining whether it is penal and must, therefore, be construed strictly as to which there is no difference between us and counsel for appellees. We and they agree that the statute is penal and must, therefore, be strictly construed. It is a trite and true saying that "hard cases make bad precedents" and this must be carefully guarded against in construing penal statutes, for the judiciary is powerless to relieve against legislation, the objection to which is that it is hard and oppressive. The only remedy is in the legislature, Daley v. Swope, 47 Miss. 367. When the true sense in which the words used in a statute is clear, no resort can be had to construction" is axiomatic. Smith v. Halfacre, 4 H. 482. Penal statutes are to be strictly construed and the courts can neither add to nor take from them." Stewart v. State, 95 Miss. 634. This is what strict construction means.

The statute says: "If a rate of interest is contracted for or received directly or indirectly, greater than twenty per cent. per annum, the principal and all interest shall be forfeited, and any amount paid on any such contract may be recovered by suit." Chapter 229, Acts 1912.

More than twenty per cent. per annum was contracted for, and the statute plainly provides that the principal and interest shall be forfeited and that any amount paid on such contract may be recovered by suit."

If appellees may escape on the flimsy pretext of "within twelve months from date of advance, in the face of the avowed intent and knowledge and purpose and express understanding that the money would be repaid within ninety days, why write the statute?

The quotation, given by Mr. Wasson's brief, from Grayson v. Brooks, 64 Miss. 410, is too universally received as the law, to need further comment on this straw counsel catch at.

All of the argument of the counsel for appellee that, by the contract, Byrd, had twelve months in which to ship the lumber, but that he shipped, voluntarily, within a less time and voluntarily made payment as against the advance and that because of such voluntary shipment and payment by him, he cannot make his act the basis of a forfeiture against the appellees, falls to the ground for three significant reasons shown by the transcript:

Second: The appellees, in their bill, to which solemn oath was made by Link, states that at the date of filing to wit: February, 1917, the entire indebtness for which a decree was asked, amounting to four thousand, three hundred and sixty-nine dollars and seventeen cents, was, at that time unpaid and due. The advances were as shown by the account, made exhibit to the bill and under the solemn oath of Mr. Link. This exhibit shows advances made all along, from May 6, 1916, to January, 1917. The very contract is dated May 6, 1916, and advances were made, as stated, up to January, 1917. In fact, the last advances shown by this were made in November, 1916, December, 1916 (two thousand, four hundred and twenty-one dollars and twenty-five cents) and January, 1917 (one thousand, one hundred and sixty-three dollars and ninety-three cents). What then becomes of the claim subsequently made, after the oath to the original bill, that the account was, in February, unpaid and due.

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