Duval v. Neal

• Decision Date: 12 December 1892
• Citation: 70 Miss. 288,12 So. 145
• Court: Mississippi Supreme Court
• Parties: MARY V. DUVAL v. FANNIE E. NEAL

12 So. 145

70 Miss. 288

MARY V. DUVAL v. FANNIE E. NEAL

Supreme Court of Mississippi

December 12, 1892

October 1892

FROM the chancery court of Panola county, HON. B. T. KIMBROUGH Chancellor.

Appeal from decree overruling a demurrer. Appellee, Fannie E. Neal filed her bill against appellant, Mary V. Duval, alleging that the latter had written a book, entitled "History of Mississippi," and had the same copyrighted; but, being unable to pay for publishing the book and introducing it to the public, sought and obtained from complainant advances for that purpose. The agreement between them stipulated that complainant should furnish $ 500, to be applied toward the publication of the book, and, in consideration thereof should receive all the net receipts from sales of the book until the said sum by her advanced should be repaid, with lawful interest, and, besides, should forever own one-half interest in the book. The bill alleges that complainant advanced, under this contract, more than $ 1,100, the advances over $ 500, the stipulated amount, having been found necessary to procure the publication; that complainant had received the greater part of the money derived from sales, but there was still due $ 464; that defendant was purposing and preparing to issue a new edition of the book, by which the old one would be superseded and rendered valueless; that defendant denies all right of complainant in the new edition, and has instructed the publishers not to furnish any more copies of the old edition to complainant, or allow her the use of the copy plates. Complainant avers that she is entitled to all the proceeds of the book until her advances are repaid, and that she is a half-owner in the book, and defendant has no right to supersede it with a new edition without complainant's consent; and, if a new edition is issued, complainant will also have a half-interest in it.

The prayer is for an accounting, and for an injunction to prevent defendant from interfering with the publication and sale of the book in any manner prejudicial to complainant's interests, and for a receiver.

Defendant demurred to the bill, assigning numerous grounds, chiefly that the contract was usurious. Demurrer overruled, and defendant appeals.

Affirmed.

Shands & Johnson, for appellant.

1. The case turns entirely upon the construction of the written contract. Appellant contends that it merely created a lien for $ 500 advanced to her by appellee. No partnership is created. The $ 500 is a mere debt due, and is to be repaid with interest. It creates a personal liability on appellant. The parties are not engaged in a joint venture. Appellee risks nothing, pays none of the expenses, and is interested in the profits only as a means of compensation for advances. 52 Ill. 219; 47 Ib., 178; 97 Mass. 230; 34 N.W. 419; 54 Mich. 9; 76 N.Y. 55; 87 Ib., 33; 51 Am. Rep., 614; 53 Vt. 669.

2. The contract is usurious. Such contracts are often confounded with partnerships. 1 Lindley on Part., 16. The half-interest in the book is compensation over and above the interest. It is not necessary that the additional interest be stipulated to be paid in money. 37 Am. Dec., 642; 20 Ib., 300. At most, appellee has only a lien for $ 500, and such other advances as were necessary to protect her lien.

Haynes & Hays, on the same side,

In support of the contention that the contract is usurious, cited 20 Am. Dec., 300; 2 Peters, 537; 5 Am. Dec., 424; 42 Ib., 372; Parsons on Con., 427, 431; Waterman on Spec. Perf., § 216.

R. H Taylor and W. D. Miller, for appellee.

The contract was not a loan of money. The advances were to be repaid only out of the "net receipts, " and not in any event. The agreement created a partnership in a hazardous venture,...