Hattiesburg Production Credit Ass'n v. Smith

• Decision Date: 28 April 1941
• Docket Number: 34480.
• Citation: 191 Miss. 119,1 So.2d 768
• Parties: HATTIESBURG PRODUCTION CREDIT ASS'N v. SMITH.
• Court: Mississippi Supreme Court

1 So.2d 768

191 Miss. 119

HATTIESBURG PRODUCTION CREDIT ASS'N v. SMITH.

No. 34480.

Supreme Court of Mississippi

April 28, 1941

R E. Spivey, Jr., of New Orleans, La., for appellant.

T B. Davis, of Columbia, and E. J. Currie, of Hattiesburg, for appellee.

ROBERDS Justice.

Appellant appeals from a judgment, upon a jury verdict, in favor of appellee, for $700 damages, as claimed by appellee, resulting from the wrongful seizure and sale by the trustee of personal property conveyed by a trust deed executed by appellee to secure payment of an indebtedness to appellant. The trustee was not a party to the suit. Appellee claims that he assigned to the appellant, as a cash payment on his debt, a government rent check for $66, due to be paid to appellee some six months thereafter, in consideration of which payment appellant, through one Wilkes, a collector for appellant orally agreed to extend, for thirty or sixty days, the maturity date of the balance owing upon a promissory note and that the trustee in the deed of trust, before the expiration of the extension period, took possession of the personal property, over the protest of appellee, and sold it under the trust deed, which resulted in the damages claimed by appellee. Appellant makes the contentions, among others (1) that no such agreement was in fact made; (2) that if made, the collector had no authority or power to make it; (3) that if made and authority existed therefor, it was not valid and binding, because (a) it was uncertain and indefinite, and (b) there was no consideration for it; and (4) that the wrong, if there was wrong, was that of the trustee in the trust deed, the agent of both appellant, the beneficiary in, and appellee, the maker of, the trust deed, for which appellant was in no wise responsible.

We have diligently considered all of the contentions of both parties presented by this record. Decision upon the binding effect of the alleged extension agreement disposes of the entire case.

On February 8, 1939, appellee executed to appellant a promissory note for $140, due on demand after September 1st following, bearing 5% interest from date. This was for borrowed money, loaned to appellee for the purpose of making a crop. On the same day, and to secure the payment of this note, appellee executed a deed of trust upon his crop to be grown during 1939, one mule and his farming implements, consisting of a middle buster, a turning plow and a side harrow.

Sometime after September 1st, no part of the note having been paid, appellant demanded payment thereof. It developed that appellee, without the consent of appellant, had sold all of his cotton, consisting of four bales, for around $190, had used the money, and had paid nothing on the debt.

Shortly after October 1st appellant placed the note in the hands of Wilkes for collection. Wilkes requested payment by appellee, and the rent check payment and extension arrangement took place. Appellee testified that the agreement was made. Wilkes testified that it was not made; that he told appellee that he had no authority to accept as a payment on the note anything but cash, and had no authority to extend payment; that all he could do would be to submit the matter to appellant. The record shows conclusively that Wilkes had only the authority he said he had, although ratification by appellant of the agreement by Wilkes, as the jury found was made, would be an open question, if it were necessary for us to decide that. Some five days following this conversation Wilkes, together with the trustee in the deed of trust, went to the home of Smith, and Wilkes told Smith the appellant would not agree to the extension, and that the trustee would have to take the property unless the indebtedness was paid. Wilkes then left for Hattiesburg, leaving the trustee with Smith. Appellee told the trustee not to take the property until he, appellee, could go to Hattiesburg and get the money. Appellee and his wife then left for Hattiesburg, some nine miles away, leaving their son and the trustee at the home. The mule was in a stable, the door to which was closed; a chain was run through a hole in the door, thence around a post, and the ends connected by the shackle of a broken padlock. The farming tools were in the open near the end of the residence. Appellee says he was gone about an hour. The trustee testified that he waited two hours, and Smith did not return; and that he then took charge of the personal property, and carried it to Hattiesburg and advertised it for sale. Smith did not get any money that day. However, a day or two afterwards he did manage to get $87, and he paid that to appellant on the debt, taking a receipt therefor, which receipt showed the balance owing, without giving any credit for the rent check. Appellee was present at the sale, and Wilkes told him that appellant would buy in the property for a small price, so that appellee might pay the balance of the debt and redeem the property if he desired.

Accepting, as the jury found, that Wilkes agreed to extend payment of the balance of the note thirty or sixty days, and that he had authority to make such an agreement, the fundamental question is whether it was a legally binding agreement-whether there was a lawful consideration for it. An agreement to extend payment, in order to be binding, must be supported by sufficient consideration. Tsesmelis v. Sinton State Bank, Tex.Com.App., 53 S.W.2d 461, 85 A.L.R. 319; 3 R.C.L. page 1278, section 508; Goodman Mfg. Co. v. Mammoth Vein Coal Co., 185 Iowa 253, 168 N.W. 912. The authorities seem to be in accord in holding that partial payment of the amount named in a contract after such...