Cudahy Packing Co. v. C. E. Miller's Estate

• Decision Date: 27 January 1913
• Citation: 60 So. 574,103 Miss. 435
• Parties: CUDAHY PACKING CO. v. C. E. MILLER'S ESTATE
• Court: Mississippi Supreme Court

60 So. 574

103 Miss. 435

CUDAHY PACKING CO. v. C. E. MILLER'S ESTATE

Supreme Court of Mississippi

January 27, 1913

October 1912

Appeal from the chancery court of Tunica county, HON. M. E. DENTON Chancellor.

Suit by Cudahy Packing Company against the estate of C. E. Miller deceased. From a decree sustaining an objection by the executor to plaintiff's claim, it appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Carroll Scott & Fisher, for appellant.

The petition and affidavit attached thereto are in substantial compliance with section 2106 of the Code of 1906. Substantial compliance with the statute is all that is required. Chaeirs v. Chaeirs, 81 Miss. 663; Walker v. Nelson, 87 Miss. 268; Bankston v. Copeland, 55 So. 48.

The claim of the Cudahy Packing Company, quoted above, is in the form of a petition. It is in writing and sets forth all of the facts therein affirmatively required by section 2106 of the Code of 1906. This petition is signed by the Cudahy Packing Company. Attached to the petition is an affidavit, stating as follows: "That the foregoing account embodied in the claim filed is due, just and owing; that the facts set forth in the claim are within his own knowledge, he having investigated the facts as agent and attorney, for the claimant and he knows them to be, as in the claim set forth, to be, accurately and truthfully stated." The affidavit attached thereto and signed by the agent of the Cudahy Packing Company is identically the same as is in the affidavit. The entire statements made in the petition and claim attached thereto had been restated in hac verba in the affidavit; and, if the facts set forth in the petition, as sworn to, conform with the affidavit required to be made under section 2106, is it a compliance with the statute.

There is one other cause of contest in paragraph 5, which is, that the affidavit fails to state, "that it is not usurious." There is not in the affidavit and the petition a statement in the words "that it is not usurious;" but, as substantial compliance with the statute is alone necessary, it affirmatively appears in the petition that the account is not usurious and affirmatively appears as distinctly and positively stated as though the words "that it is not usurious" were used in the affidavit.

Usury is as follows: "To constitute usury there must be an agreement between the lender and the borrower, knowingly, because he promises, and the lender knowingly takes or receives a higher rate of interest than the law allows, with the intention to violate the statute." Planters Bank v. Snodgrass, 4 How. (Miss.) 573. The statute provides, section 2678: "If a greater rate of interest than ten per centum shall be stipulated or received in any case, the interest shall be forfeited," etc. To constitute usury, therefore, there must be an agreement between the parties to take a greater rate of interest than that allowed by law. On the face of the petition it appears that the debt is made up of separate invoices, giving the date, the number of pounds and the product, with the price per hundred weight, and there are about a hundred different items, aggregating the sum of $ 3,444.28, extending over a period of several years.

Therefore, in an open account, such as this, with the price of every particular item given, there can be no usury. It might be possible to overcharge, but it is not possible in dealings between a merchant and his customer, in an open account, for the sale of meat at particular prices, to charge usury; and I have found no case in which it is held that in an open account it is necessary to state that the account is not usurious where it appears from the face of the account that no usury was charged, and where in the petition the prayer was "that the account and every item thereon, with proper interest, be allowed." But while this would seem to be conclusive, yet the petition itself sets forth the fact that the account arose by reason of connivance of Miller with one of its shipping clerks, whereby the shipping clerk shipped to and was paid for products of the Cudahy Packing Company, without the knowledge or consent of the Cudahy Packing Company, thus affirmatively stating that the account was accurate and the amount is due by reason of the fraudulent agreement between one of its shipping clerks, unanthorized so to do, and the said C. E. Miller, and it therefore affirmatively appears that the claim is for the value of goods had and received, and grows out of the fact that the goods received were those of the Cudahy Packing Company which were stolen from it and received by the said C. R. Miller, with knowledge of the facts. Therefore, it affirmatively appears in the petition that there is no usury in the account and it appears as strongly and directly in the petition and affidavit and as affirmatively as though the words were used "that it is not usurious." The supreme court in the case of Chaeirs v. Chaeirs, 81 Miss. 663, is the chief case relied upon by the appellees to sustain their position that the affidavit in this case is not sufficient, counsel seeming to be under the impression that that decision, and the decision which follows, held that there must be a literal compliance with the verbiage, as well as the spirit of the statute. Such a contention is not the law of Mississippi and was not the decision in the Chaeirs case. The Chaeirs case was a suit upon a note, and not upon an open account and, in holding that the affidavit did not comply with the statute the court says: "The probate in this case does not substantially conform to the requirements of the statute and did not invest the clerk with jurisdiction to allow and register it." . . . "We hold section 1932 to be mandatory, that the affidavit must be in effect what it prescribes. Both accounts and written evidence of debt must be accompanied by the substance of the prescribed affidavit. In the case before us the claim may be usurious for aught we know, we cannot say from its face that it is not, and the affidavit should show that it is not." The Court further says: "We do not now say whether the other omissions mentioned at the outset are fatal or not."

The other omissions referred to were that the word "correct" and that security has not been received therefor, except as stated, and that neither the affidavit, nor any other person has received payment, all were omitted from the affidavit, and yet the court in Chaeirs v. Chaeirs did not decide that so much of the affidavit being absent as the last words quoted was a defect, merely holding that in the case at hand, and where it did not appear from the face of the account, and they could not say from an examination of the account that the claim was not usurious that then that statement must affirmatively appear. The decision in Chaeirs v. Chaeirs therefore goes only to the extent that there must be substantial compliance with the statute. It was not intended by the court in that decision that the statute should be used as a tenter hook to defeat honest claims and as a means to destroy the rights of the individuals with honest claims who sought to comply with the terms of the statute. Walker v. Nelson, 86 Miss. 268, was the next case, and that merely refers to the case of Chaeirs v. Chaeirs, supra, and McWharter's case in 39 Miss., both of which cases merely hold that substantial compliance with the statute is necessary. The Walker case reconfirming McWharter v. MvDonald to the extent that the claim must be signed by the creditor. Of this more hereafter. Saunders v. Stevenson, 94 Miss. 676, is to the same extent. It was a note sued upon and the affidavit and the claim was signed by the husband of the creditor and reaffirms McWharter v. McDonald, Chaeirs v. Chaeirs and Walker v. Nelson. The next case is the case of Lehman v. Powe, 95 Miss. 446, in which it is held by the majority of the court that canceled bank checks drawn in the lifetime of decedent and in his favor by the alleged creditor is without probative force to establish a claim in the drawer's favor against the estate of the payee, but are not written evidences thereof within the Code of 1906, section 2106, regulating the probation of claims against estates of decedents. From this opinion Judge MAYES dissented. The opinion of the majority holding that the statute contemplates that in presenting claims against the estate the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed, and that it must disclose the nature and amount of the same with sufficient precision to bar when paid an action therefor. Nowhere does the main body of the decision seek to carry the rule further than that set forth in Chaeirs v. Chaeirs, in which substantial compliance with the statute is all that is necessary. If mistaken in the above, and whether mistaken or not, yet the claim must be allowed and the cause reversed, because the will creates an express trust for the payment of debts, which takes the claim out of the operation of section 2107 of the Code.

An analytical investigation of the Mississippi cases will disclose that whenever the construction of a will empowers and directs the executors as to the sale of property, the payment of debts and legacies and the management of the estate, the construction of the will shall be followed by the executor and the provisions therein contained shall so operate as to require the executor to pursue the course prescribed in the will, if it be lawful. Therefore such direction to the executor of estates in Mississippi, and that in that event a trust is created in express terms. Hill on Trusts, p. 516; Abbey v. Hill, 64 Miss. 340.

Montgomery & Montgomery, for appellee...