Davis v. Agents Finance Corp., 43063

• Decision Date: 25 May 1964
• Docket Number: No. 43063,43063
• Citation: 249 Miss. 839,164 So.2d 449
• Parties: William P. DAVIS et ux. v. AGENTS FINANCE CORPORATION.
• Court: Mississippi Supreme Court

Page 449

164 So.2d 449

249 Miss. 839

William P. DAVIS et ux. v. AGENTS FINANCE CORPORATION.

No. 43063.

Supreme Court of Mississippi.

May 25, 1964.

W. W. Dent, Collins, for appellants.

S. E. Allen, Jr., Hazlehurst, for appellee.

RODGERS, Justice.

This is an appeal from an order of the Chancery Court of Covington County, directing the Chancery Clerk to pay Agents Finance Corporation $2,955.60, out of the surplus funds paid to the clerk by a trustee, after the sale of property belonging to appellants to satisfy the debt due under a first mortgage.

The appeal of this case is a sequel of a former appeal, Davis v. Polk Financial Service, 242 Miss. 419, 135 So.2d 175.

The original suit was filed in the chancery court on May 2, 1958, by Polk Financial Service and sixteen other judgment-creditors of appellants for the purpose of setting aside certain alleged fraudulent conveyances of real property made by appellants, and to subject the described land to the judgment of the complainant.

The appellants executed the deed of trust upon certain real property to Lamar Life Insurance Company in January 1953. A funeral home, a cafe, and filling station were thereafter erected on the property. The appellants lived in the funeral home. Thereafter, on June 5, 1953, appellants executed another deed of trust to Agents Finance Corporation (hereinafter called Finance Corporation) for $2,680. A third trust deed was given to Tillman Finance Company. The property described in these trust deeds was sold under the Lamar Life Insurance Company trust deed and the sum of $3,652.26 was paid into the registry of the chancery court by the trustee. The court allowed the homestead exemption of appellants in the sum of $5,000, and appellant did not appeal from the order of the court allowing the claim of Tillman Finance Company in the sum of $1,248.29. The issue here, therefore, is whether or not the chancery court was in error in allowing the claim of Agents Finance Corporation.

Appellants suggested in their assignment of errors that the award to appellees was erroneous because (1) the court admitted into evidence the account filed by the trustees named in the trust deed to the Agents Finance Corporation; (2) the court did not hold that the original note was a demand note due in thirty days after date and was barred by the statute of frauds; (3) that in any event all of the monthly payments were barred by the statute of limitation except $600; and (4) the court erred in allowing interest and attorney's fee to the appellee.

Appellants' sworn answer, and later the testimony of William P. Davis, admits the execution of the trust deed to the Agents Finance Corporation to secure the payment of $2,680 'evidenced by one (1) promissory note of even date herewith, bearing interest at the rate of four percent (4%) per annum, payable as follows, to wit: Fifty Dollars ($50) per month, the first payment to become due and payable July 1, 1953, and a like sum due and payable on the first day of each succeeding month thereafter until both principal and interest have been paid.'

The answer stated that the deed of trust was payable in installments and stated that the case was settled by the final decree rendered on the 7th day of May 1960, which decree was affirmed; and that the terms of the said decree should be followed except for that part of the indebtedness to the Agents Finance Corporation, barred by the statute of limitations. Later, however, the appellants filed an amendment to their answer on February 21, 1963, in which it was stated that the note was a demand note; that the same was barred by the six-year statute of limitations, on June 6, 1959. Appellants also pleaded that the note had been paid and that the accounting by the appellee was incorrect.

The appellants moved the court to strike the claim filed by the appellee, because the claim was in the form of an accounting and the note was not attached to the claim, as required by law. The appellee then filed an affidavit stating that the note had been lost. It did not, however, file a copy of the note or attempt to substitute a lost instrument. The affidavit alleged that the balance due as shown by the itemized account was true.

The first assignment of error is therefore based upon the admission of testimony with reference to the itemized payments as said to have been made by the appellant, William P. Davis. The adverse witnesses called by appellants to show that the account was incorrect, readily admitted that the itemized payments were taken from the records of the inactive corporation and none of the witnesses recalled the details as to whether or not the note was a demand note. Appellant, William P. Davis, testified the note was a demand note, due thirty days after date. On the other hand, the facts offered by the claimant and the defendant show that the note was actually paid in installments, and that the note described in the trust deed was in fact due and payable in installments. Appellants admitted that the payments were made in installments of $50 each month. The appellee claimed that appellant William P. Davis, except on one or two occasions, paid only $25 each month instead of $50 appellants agreed to pay.

Appellants introduced a letter from Ben O. Logue, dated November 13, 1956, in which it is stated: 'At the present time you are in arrears for the months of October and November.' On June 11, 1957, Mr. D. C. Cooley, attorney for the appellee, wrote a letter to Mr. Davis, in which he stated: 'At the request of Mr. Ben O. Logue and upon his advice that you have brought your account up to date, I enclose and return herewith your check of March 9, 1957 * * *'. The defendants also introduced a letter dated April 10, 1958, from D. C. Cooley, addressed to Mr. Davis in which Mr. Cooley said: 'Mr. Ben O. Logue advises that your February, March and April payments are past due. * * *', and further stated: 'As you well know, from the terms of your note, which was a demand note, and from all understandings and promises about payment of this $2,600.00, you have totally violated any and all agreements that have ever been made.'

Mr. Cooley was introduced as an adverse witness and testified that: 'I have testified I have never seen the note so I consider that statement as a matter of conjecture to me.' This witness did testify, however, that had all of the payments been made in accordance with the agreement at $50 per month, the note would have been paid in full by June 5, 1958, but stated 'I do know that Mr. Davis never paid fifty dollars per month. He was permitted to pay twenty-five dollars per month.'

I

The appellee did not file a copy of the note on which the claim was based as is required by Sec. 1469, Miss.Code 1942, Rec. The appellants therefore objected to proceeding upon the claim until a copy of the note was produced, and obtained a subpoena duces tecum requiring the Finance Corporation to produce the note. The appellee, Finance Corporation, made a search for the note and filed an affidavit that the note had been lost, and gave the contents of the note as described in the trust deed. Testimony was taken upon the loss of the instrument, and the trial court permitted the claimant, Finance Corporation, to proceed to trial upon the affidavit and testimony showing the loss of the instrument and evidence as to its form and content.

We are of the opinion that the court was not in error in proceeding to trial upon the showing of the loss of the note. This Court has heretofore held that it is not error to permit the plaintiff in the trial court to show a lost instrument on which a suit is based. Home Insurance Company v. Newman, 147 Miss. 237, 111 So. 455. Moreover, where the correct result is reached by means of one manner of pleading, this Court will not, on appeal, reverse the judgment because another form of pleading might, and probably should have been employed. Noel, Dist. Atty. v. Aron, 8...