Hebron Bank v. Gambrell

• Decision Date: 02 January 1918
• Docket Number: 19622
• Court: Mississippi Supreme Court
• Parties: HEBRON BANK v. GAMBRELL

77 So. 148

116 Miss. 343

HEBRON BANK v. GAMBRELL

No. 19622

Supreme Court of Mississippi

January 2, 1918

Division A

APPEAL from the chancery court of Smith county, HON. G. C. TANN Chancellor.

Suit by J. D. Gambrell against the Hebron Bank and another. From a decree for plaintiff, the defendant named appeals.

The facts are fully stated in the opinion of the court.

Cause reversed, and remanded.

Hilton & Hilton, for appellant.

T. J Willis, for appellee.

OPINION

SYKE., J.

The appellee, J. D. Gambrell, filed a bill in the chancery court of Smith county against J. W. Meadows and the Hebron Bank for an accounting. The bill alleged that Meadows and Gambrell had been engaged in the sawmill business as partners, and that they did their banking business with the appellant bank. It was also alleged in the bill that the bank and the defendant Meadows conspired to defraud the complainant out of certain moneys; further, that the bank had charged individual checks of Meadows to the partnership account and made other erroneous charges on the partnership and individual account of complainant Gambrell. It was alleged that the bank had charged the appellee individually and the partnership on notes, invoices, and overdraft accounts ten per cent usurious interest. It was also alleged that the bank had failed to credit the partnership account with about six hundred dollars, being twenty per cent. of the proceeds of sales of certain cars of lumber, and that the account was entitled to this credit. The answer denied all of the material allegations of the bill relating to the erroneous charges, mistakes, and usurious interest, and denied fraud and collusion. A great deal of testimony was introduced by both parties. The chancellor found that defendants were not guilty of any fraud. He also found a great number of items in controversy in favor of the defendant bank. There is no cross-appeal by Gambrell. Certain items were found by the chancellor in favor of the complainant, Gambrell, against the bank, from which this appeal is prosecuted. We shall notice briefly these items.

The chancellor found that Gambrell was entitled to recover of the bank as usurious interest charged him by the bank two hundred and forty dollars and thirty-two cents on the invoice account and one hundred and seventeen dollars and forty-seven cents on the overdraft account, both partnership accounts. We have carefully searched the record for testimony sustaining this finding of fact. The appellee, Gambrell, as an exhibit to his testimony, filed certain slips showing that the bank had charged him one hundred and seventeen dollars and forty-seven cents interest on invoice and overdraft accounts. He then stated generally that he had examined the books of the bank, and it was his best judgment that the overcharge or the usurious interest charged on both these accounts amounted to two hundred and forty dollars and thirty-two cents. In other words, the appellee, Gambrell, stated in an indefinite way that he thought the usurious interest charges on both invoice and overdraft accounts amounted to two hundred and forty dollars and thirty-two cents. The chancellor, however, rendered a decree in his favor for the two hundred and forty dollars and thirty-two cents and the one hundred and seventeen dollars and forty-seven cents. The item of one hundred and seventeen dollars and forty-seven cents interest on overdraft account is supported by the slips made exhibits to this testimony. There is no testimony, however, other than the indefinite statement of the appellee, Gambrell, relating to the two hundred and forty dollars and thirty-two cent item, and this, according to his statement, covers both overdraft and invoice account. Since the overdraft account was covered by the two hundred and forty dollars and thirty-two cent charge, then it was error in the chancellor to again allow this item as a separate credit since it was included in the two hundred and forty dollars and thirty-two cent item. The testimony as to the two hundred and forty dollars and thirty-two cent item is very indefinite, and should be more certain and specific upon the second trial of the case.

There is also a finding in favor of the appellee of three...