General Contract Purchase Corporation v. Holland

• Decision Date: 27 June 1938
• Docket Number: 4-5137
• Citation: 119 S.W.2d 535,196 Ark. 675
• Parties: GENERAL CONTRACT PURCHASE CORPORATION v. HOLLAND
• Court: Arkansas Supreme Court

119 S.W.2d 535

196 Ark. 675

GENERAL CONTRACT PURCHASE CORPORATION v. HOLLAND

4-5137

Supreme Court of Arkansas

June 27, 1938

Appeal from Mississippi Circuit Court, Chickasawba District; G. E Keck, Judge; reversed.

Cause reversed.

Frank C. Douglas, for appellant.

Partlow & Bradley, for appellee.

OPINION

DONHAM, J.

The appellee, on March 13, 1937, purchased of W. T. Barnett Auto Sales of Blytheville, Arkansas, one new 1937 LaSalle Touring Sedan. The cash price of this car was $ 1,532, and the credit price, including time payment charges for 24 months, was $ 1,764.80. Appellee bought on the credit plan, paying $ 182 cash, traded in his used Chevrolet at an agreed price of $ 600 and executed his negotiable promissory note for $ 982.80, payable in 24 months at the rate of $ 40.95 per month. When he executed the note he also executed the usual title retaining contract.

W. T. Barnett Auto Sales immediately discounted and sold this note and contract to appellant; and appellee paid to appellant his monthly payments regularly for April, May, June, July and August, 1937. He refused to pay the installment due September 13, 1937. Appellant declared the entire balance of the note due and on October 2, 1937, filed suit in the court of common pleas at Blytheville to collect.

Appellee answered and filed his cross-complaint, asking that W. T. Barnett be made a party to the suit. In his testimony before the common pleas court he admitted the execution of the note which had been negotiated and sold to appellant and also the execution of the contract accompanying said note, admitting that they were given "for the balance of the purchase price" of the LaSalle car. He alleged, however, that on September 7, 1937, he made a new trade with Barnett for a Dodge car, trading in his LaSalle car and making a note for $ 200 for the Dodge car, and that Barnett was to assume and pay $ 778.05 which he still owed on the note involved here.

Barnett was made a party to the suit and filed answer denying the allegations as to him and also filed a cross-complaint alleging that appellee owed him the sum of $ 200 as part of the purchase price of the Dodge automobile.

Judgment was rendered for appellant on the complaint and for Barnett on his cross-complaint against appellee. He appealed from the judgment of the common pleas court to the circuit court, Chickasawba district, Mississippi county. On the first day of the term of the circuit court, appellee dismissed his cross-complaint against Barnett and filed a pleading which he called "Defendant's Amended Answer and Cross-complaint." By this pleading, appellee abandoned the position that he had taken in the common pleas court and defended the case on an entirely different ground. He contended in the circuit court that he had paid for the LaSalle car at the time he purchased it, and then immediately executed the note sued on to borrow $ 750. He pleaded usury as a defense.

Appellant filed a motion to strike the amended answer and cross-complaint, but this motion was not passed upon by the court. The case proceeded to trial by jury, which trial resulted in a verdict for the defendant, appellee here. Motion for a new trial was filed and overruled and an appeal was prayed and granted to this court.

The note sued on was introduced in evidence, and it is as follows:

"$ 982.50

Blytheville, Ark., March 13th, 1937.

"For value received, the undersigned promises to pay to the order of W. T. Barnett Auto Sales the sum of nine hundred eighty-two and 80/100 dollars, in 24 consecutive monthly installments of $ 40.95 each, and monthly installments of $ each, on the 13th of each month commencing April 13th, 1937, at the office of General Contract Purchase Corporation together with interest on each installment after its maturity at the highest lawful rate.

"If any installment of this note is not paid at the time and place specified herein, the entire amount unpaid shall be due and payable forthwith at the election of the holder of this note without notice. The acceptance of any installment hereof by the holder after the time when it becomes due as herein set forth shall not be held to establish a custom, or waive any rights of the holder to enforce prompt payment of any further installments or otherwise.

"If this note shall be placed in the hands of an attorney for collection the undersigned jointly and severally agree to pay fifteen per cent. of the amount then due hereon as an attorney's fee.

"The undersigned hereby waives all benefit of valuation, appraisement and exemption laws. The undersigned and all indorsers and other parties hereto, hereby waive presentment for payment, demand, protest and notice of dishonor, protest and non-payment.

"J. P. HOLLAND,

Purchaser's signature.

"Witness:

W. T. BARNETT. "

On the back of the note there is the indorsement of the payee, W. T. Barnett Auto Sales, made at the time the note was negotiated and sold to appellant.

The...