Coleman v. Fisher

Decision Date04 November 1899
Citation53 S.W. 671,67 Ark. 27
PartiesCOLEMAN v. FISHER
CourtArkansas Supreme Court

Appeal from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Reversed.

P. C Dooley, for appellant.

The mortgage itself is the foundation of the dealings of the parties and the source of the indebtedness. Equity will regard the notes as having all been executed. 61 Ark. 266.

C. S Collins and John Barrow, for appellees.

The contract was usurious. 35 Ark. 52; 41 Ark. 331; 32 Ark. 346. As to plea of misjoinder of parties, see 44 Ark. 487.

OPINION

BUNN, C. J.

This case was decided by us some time ago (reported in 41 S.W. 49), but appellees showed to the court, after the decision was rendered, that the case had been prematurely submitted, because there had been no service of notice of the appeal and summons to them; and the judgment was thereupon set aside, and proper service of summons was served upon appellees as non-residents, and the cause afterwards redocketed and resubmitted. The facts involved are the same as when presented to us before, and no new issues of law are raised. With little additions, we adopt our former as the decision of this cause, and the same is as follows, to-wit:

This is a bill to foreclose a mortgage on a house and lot in the city of Little Rock, filed by appellant against appellees, on April 12, 1893, in the Pulaski chancery court. Answer and amended answer set up failure of consideration and partial failure of consideration and payment, non-joinder of parties plaintiff, statute of limitations and usury. Upon the pleadings and testimony in the case, the chancellor found generally "upon the whole case for defendant, and dismissed the bill for want of equity, and plaintiff appealed."

Appellee J. W. Fisher, being in the employ of Smeeton, Coleman & Co. and receiving a weekly salary from them, in January, 1889, or just previously, purchased the lot in suit, and obtained money from his employers with which to pay for same, in whole or in part. In March following, desiring to build a residence on the lot, and otherwise improve it for a home, he entered into a contract with the said Smeeton, Coleman & Co. whereby they agreed to furnish him the money and materials to enable him to build the house, to the estimated amount of $ 500, including the amount they had already advanced to him to pay for the lot. This amount was secured by a mortgage on that day, to-wit: the 13th of March, 1889, executed and delivered to them by Fisher and wife, Dora, on said lot, and the improvements thereon, and to be placed thereon. It appears that the money and materials were to be paid and furnished as Fisher should need them. The recitals of the mortgage setting forth the contract read thus: "This sale is on condition that whereas, the said J. W. Fisher is justly indebted unto the said Smeeton, Coleman & Co. in the sum of five hundred and ninety dollars, evidenced by his fifty-nine promissory notes of ten dollars each, payable monthly to the order of said Smeeton, Coleman & Co., with interest from their dates until paid, at the rate of ten per cent per...

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17 cases
  • Rhodes v. Cannon
    • United States
    • Arkansas Supreme Court
    • 2 Marzo 1914
    ... ... of the execution of the note, because, as has been stated, ... she was not a party to its execution. [112 Ark. 17] In the ... case of Coleman v. Fisher, 67 Ark. 27, 53 ... S.W. 671, a mortgage retired that the mortgagor was indebted ... to the mortgagees in the sum of $ 590, evidenced by ... ...
  • James v. Mallory
    • United States
    • Arkansas Supreme Court
    • 7 Octubre 1905
  • Capps v. State
    • United States
    • Arkansas Supreme Court
    • 14 Julio 1913
    ... ... People v ... Leary, 105 Cal. 486, 39 P. 24; People v ... Gafney, 1 Sheld. 304, note 6, 50 N.Y. 416; ... Commonwealth v. Fisher, 134 Am. St. Rep ... 1056. A leading case upon the subject of newspapers read by ... the jurors engaged in a trial, and the effect of such conduct ... ...
  • Missouri Pacific Railroad Company v. Pfeiffer Stone Company
    • United States
    • Arkansas Supreme Court
    • 17 Noviembre 1924
    ... ... 247Supreme Court of ArkansasNovember 17, 1924 ...           Appeal ... from Independence Circuit Court; Dene H. Coleman, Judge; ... reversed ...          STATEMENT ... OF FACTS ...          This as ... an action by the Missouri Pacific Railroad ... ...
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