Hawkins v. Ellis

• Decision Date: 01 January 1934
• Docket Number: 30914
• Citation: 151 So. 569,168 Miss. 428
• Court: Mississippi Supreme Court
• Parties: HAWKINS v. ELLIS

151 So. 569

168 Miss. 428

HAWKINS v. ELLIS

No. 30914

Supreme Court of Mississippi

January 1, 1934

Division A

1. LIMITATION OF ACTIONS.

Neither ordinary receipts nor receipt stubs of county warrants established acknowledgment of indebtedness or promise to pay in such terms as to render supplemental testimony unnecessary, in absence of express promise therein, or words from which law could imply promise to repay money received.

2. LIMITATION OF ACTIONS.

Three-year and not six-year, statute applied to defendant's claim for overpayment on note based in part on usurious interest payments (Code 1930, section 1947).

3. BILLS AND NOTES.

Compelling defendant to execute note under threat of immediate foreclosure of mortgage, without any other consideration constituted "duress of goods" or "coercion," and was not "accord and satisfaction."

4. BILLS AND NOTES.

Where defendant proved that execution of note sued on was not voluntary, but was coerced by plaintiff's threat to foreclose mortgage, defendant could prove there was no consideration for note.

5. JUSTICES OF THE PEACE.

In action on note in justice of peace court, no written pleadings alleging that note was not supported by consideration were necessary.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Clay county HON. J. I. STURDIVANT, Judge.

Action by F. G. Hawkins, trustee for Sadie Kennedy, against J. F. Ellis. Defendant recovered judgment in the justice of peace court and in the circuit court, and plaintiff appeals. Affirmed in part, and reversed in part and rendered.

Affirmed in part, and reversed in part.

B. H. Loving and Frank A. Critz, both of West Point, for appellant.

There was no mutual indebtedness between the parties under defendant's plea and proof and, therefore, there could be no recovery by way of set-off.

Section 530 of the Code of 1930; Section 2088, Code of 1930; Shewalter v. Ford, 34 Miss. 417; Hoover Commercial Company v. Humphrey, 107 Miss; 810, 66 So. 214; Canal Commercial Trust & Savings Bank v. Brewer, 108 So. 424; Henry v. Hoover, 6 S. & M. 418.

The set-off was too vague, indefinite and uncertain upon which to predicate any evidence or any judgment.

Greenburg v. Massey, 90 Miss. 121, 43 So. 1; Butts v. Phelps, 79 Mo. 302.

There could have been no overpayments by Ellis to Hawkins, because it is admitted that the eight hundred dollar note was in part unpaid when Hawkins transferred it to Young and the money paid by Young to Hawkins was not a payment on the note, but was the consideration for the transfer from Hawkins to Young.

An action to recover overpayments is an action on an implied contract and is barred by the three year statute, which was plead by plaintiff.

Section 2299, Code of 1930.

The recovery on the set-off cannot be sustained by reason of any alleged usury.

Chandlee v. Tharp, 139 So. 540.

The payments made by Ellis were voluntary ones and cannot be recovered and the execution and delivery of the note sued on by Ellis was all accord and satisfaction of all matters between him and Hawkins.

30 Cyc. 1297; 30, Cyc., p. 310.

W. N. and Eugene B. Ethridge, both of Houston, for appellee.

From the viewpoint of mutual dealings, appellant has no ground for objection to appellee's plea or the judgment in this cause.

Sec. 533, Code of 1930; Weil Bros. v. Wittjen, 77 So. 308.

An accord and satisfaction is the result of all agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties.

1 R. C. L., p. 183.

It is, of course, an elementary principle of law that a contract, to be enforceable, must be supported by a good and valuable consideration. An accord and satisfaction being a contract must, therefore, be supported by a good and valuable consideration in order to be given effect.

1 R. C. L., pp. 183, 184; 1 R. C. L., pp. 178, 179; Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189; Dennis Perkins & Co. v. Jones & McLaurin, 29 Miss. 139, 31 Miss. 606.

Under section 1947 of the Code of 1930, it is provided that if a person shall evidence a loan in writing at six per cent, but shall in fact collect more, directly or indirectly, he shall forfeit the interest and same may be recovered by suit.

OPINION

McGowen, J.

Hawkins, trustee, instituted this suit in a justice of the peace court on a promissory note for twenty-three dollars and nine cents and interest thereon, dated March 10, 1925. The appellee pleaded that he did not owe the note, and further pleaded a set-off, amounting to eighty-seven dollars and nine cents, with interest at six per cent from the date thereof. There was a judgment for the defendant in the justice of the peace court that he did not owe the note sued on, and a judgment over on the set-off for eighty-seven dollars and nine cents. Appeal was prosecuted to the circuit court, where the case was tried on its merits and submitted to the jury, which returned a verdict against the plaintiff and in favor of the defendant on the set-off for one hundred forty-seven dollars and nine cents, and judgment was accordingly entered by the court; and an appeal is prosecuted here by Hawkins, trustee.

On the trial of the case it developed that in February, 1924, Ellis borrowed eight hundred dollars from Hawkins, trustee for Miss Sadie Kennedy, executed his note therefor, and gave a deed of trust to secure the payment thereof. Hawkins testified that the note for twenty-three dollars and nine cents was a settlement in full of the differences between him and Ellis. He admitted, however, that Ellis claimed he had then paid the note and did not owe anything whatever; Hawkins then demanded the twenty-three dollars and nine cent note, together with five hundred dollars cash, or he would immediately foreclose the mortgage which he held on Ellis' property. He also admitted that, notwithstanding the eight hundred dollar note bore six per cent. interest on its face by private agreement he was to receive eight per cent. thereon--a violation of section 1947, Code 1930. On the date of the note Ellis procured Young to pay five hundred dollars to Hawkins, and the latter transferred the note for eight hundred dollars without recourse to Young. At this time, according to the evidence which the jury accepted as true, Ellis had paid to Hawkins nine hundred forty-seven dollars and nine cents, which, including the payment of interest, was an overpayment of eighty-seven dollars and nine cents. These payments were made at various times during the year 1924, some of which were warrants due Ellis...