Hutto v. Jordan

• Citation: 204 Miss. 30,36 So.2d 809
• Decision Date: 27 September 1948
• Docket Number: 36814.
• Court: United States State Supreme Court of Mississippi
• Parties: HUTTO v. JORDAN.

36 So.2d 809

204 Miss. 30

HUTTO v. JORDAN.

No. 36814.

Supreme Court of Mississippi

September 27, 1948

Mize, Thompson & Mize, of Gulfport, for appellant.

Gardner & Gardner, of Gulfport, for appellee.

L. A SMITH, Sr., Justice.

This case was originated by a replevin action in the County Court of Harrison County, involving the possession of an automobile sold to appellee, with title retained by the contract of sale, which contract was assigned to appellant by the seller.

Proper affidavit was made, and declaration filed. Defendant appellee, filed a plea of the general issue and a 'counter claim', by which latter he sought to have the car returned to him on the theory that the total interest contracted to be paid 'was $85.28 which interest is far in excess of 20% per annum. Therefore the contract was null and void', and that the plaintiff could collect neither the principal nor interest thereon or assert any other rights thereunder.

The declaration alleged that the sale was for a total time price of $383.00, of which $94.00 was paid in cash 'leaving a balance of Two Hundred Eighty Nine ($289.00) Dollars, and the balance was due and payable with interest and carrying charges in twelve (12) successive monthly installments; each installment being in the amount of Thirty-one and 19/100 ($31.19) Dollars.'

In this state of the record, the parties, at the instance of appellee, agreed in writing to submit the matter to arbitration, which agreement contained a provision that after the arbitrator had heard the matter, 'the Court having jurisdiction of the subject matter, i. e., the County Court of Harrison County, Mississippi, shall render judgment on the award.'

Appellant contended that the price of the car was on a credit basis, and it was legitimate to charge more on a time sale than for cash, as declared by this Court in Yeager et al. v. Ainsworth et al., Miss. 32 So.2d 548.

Appellee maintained the contract was usurious, and unenforceable by the authority of such cases as Dickey v. Bank of Clarksdale, 183 Miss. 748, 184 So. 314.

It was agreed by the parties that the arbitrator would hear the cause solely 'on pleadings and exhibits to determine whether the Contract of Sale, upon which the suit was based, was usurious'. After such hearing, and consideration of the briefs of counsel for the respective litigants, the arbitrator found that 'there was a time price and a cash price, and that the said contract was not usurious' and awarded the car to appellant.

Appellant moved the County Court to confirm this award, which was, in effect, a motion for judgment thereon and in accordance therewith. The appellee made a motion to correct the award on the grounds that there was an evidence miscalculation of interest; a mistake in the description of the cash and time price, on the face of the record; and that the rate of interest in the contract was in excess of 20%, thereby forfeiting all rights of plaintiff. The motion of appellee was sustained by the Court and judgment entered for appellee. On appeal to the Circuit Court, the judgment of the County Court was affirmed.

On appeal here, among the errors assigned are, the setting aside of the award of the arbitrator; and the entry of final judgment for appellee.

It is not proper or necessary for us to decide whether or not there was usury as a matter of fact, or an error of law, in the award by the arbitrator in this case. The only grounds for setting an arbitration award aside, or of modifying it, are prescribed by statute. These grounds are--for vacating it--that it was procured by fraud, corruption or undue means; that there was evident partiality or corruption; that there was misconduct by the arbitrators in refusing to postpone the hearing on sufficient cause; or in refusing to hear pertinent or material evidence; or other misbehavior by which the rights of a party have been prejudiced. Section 290, Code 1942.

As to modifying it, there must be an evidence miscalculation of figures; or an evident mistake in the description of any person, thing, or property referred to in the award; an award upon a matter not submitted, or not affecting the matter submitted; imperfection in some matter of form not affecting the merits of the controversy, and when, if it had been a verdict of a jury rendered in such court, the defect could have been amended or disregarded by the court. Section 291, Code 1942.

Both appellant and appellee based their arguments before us on the finality vel non of the arbitrator's award, in our jurisprudence. We are of the opinion it was final.

Appellee cites the early Mississippi case of Robertson v. Wells, 28 Miss. 90, to sustain his position on the issue of finality. In that case, the arbitrators, in computing time, made a mistake and awarded too much to the prevailing party, an error of computation or calculation. The award was set aside, under the statute, then substantially the same as now. However, in the case at bar, there was no miscalculation or erroneous computation.

The declaration here states that the deferred notes include interest and carrying charges. Conceding for the sake of the point, but not deciding, that the 12 notes for $31.19 total an amount in excess of the balance of the original price, and this excess is 'interest and carrying charges', and usurious, contrary to the conclusion of the arbitrator, the courts of this State, neither by our statutes nor decisions, have been given or claim power to set aside the award of an arbitrator on grounds of error of law. The Robertson case, supra, on the contrary, was on a ground named specifically in the statute. So, it is not in point here.

There is no sustainable contention in...