Izard v. Jackson Production Credit Corporation

• Decision Date: 15 April 1940
• Docket Number: 34094
• Citation: 188 Miss. 447,195 So. 331
• Court: Mississippi Supreme Court
• Parties: IZARD v. JACKSON PRODUCTION CREDIT CORPORATION

195 So. 331

188 Miss. 447

IZARD v. JACKSON PRODUCTION CREDIT CORPORATION

No. 34094

Supreme Court of Mississippi, Division B

April 15, 1940

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES Judge.

Action by the Jackson Production Credit Corporation against W. L Izard for a balance due on two notes, in which defendant filed a plea of recoupment for damages for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

M. S McNeil, of Hazlehurst, for appellant.

The only question before the court is whether or not recoupment under the facts of this case can be successfully pleaded by the defendant against the plaintiff's demand. The defendant contends, and the evidence shows that he parted with his cotton check with the full understanding that the indebtedness due by him to the plaintiff would be extended for another year and that he would be financed for another year by the plaintiff in order for him to be able to liquidate the debt; that this agreement was breached by the plaintiff, his property seized under the deed of trust and sold at a sacrifice, much lower than its actual value, to his damage in an amount which would equal the amount sued for.

57 C. J. 358, sec. 1.

Where the lower court fell into error was taking the position that recoupment could only be pleaded as a defense where it arose out of the exact transaction. The writer does not think this is the law. The plaintiff's agent went to see the defendant, according to the plaintiff's testimony, with reference to the balance that was due under the terms of the deed of trust and with reference to the extension of time for the payment. Defendant parted with his property, on which the plaintiff had no lien, with the distinct understanding that he was to be given time and refinanced for another year. We believe that the following cases are in point. Machine Co. v. Thomas, 87 Miss. 391; Telegraph Cable Co. v. Craig & Co., 106 Miss. 279; Neely v. Allis-Chalmers Mfg. Co., 174 Miss. 519, 165 So. 114; Hayes et al. v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356.

Henley, Jones & Woodliff, of Hazelhurst, for appellee.

The alleged agreement to "finance for another year" was too vague, indefinite, and uncertain to constitute a valid and enforcible contract.

A. L. I., Restatement, Contracts, p. 32; 89 A. L. R. 1361, 1362, 1363; Console Master Speaker Corp. v. Muskegon Wood Products Corp., 138 A. 598, 3 W. W. Harr. 390; Chipparelli v. Baker, Kellog & Co., 169 N.E. 274, 252 N.Y. 192; Erwin & Williams v. Erwin, 25 Ala. 236; Gafford v. Proskauer & Co., 59 Ala. 264; Garcin v. Granville Iron Corp., 244 N.Y.S. 145; Greater Serv. Homebuilders' Inv. Assn. v. Allbright, 293 P. 345, 88 Colo. 146; Hardman v. Polino (W.Va.), 168 S.E. 384; Hollander v. Gautier, 168 A. 860, 114 N. J. Eq. 485; Royal Bank of Canada v. Williams, 222 N.Y.S. 425; Jordan v. Buick Motor Co., 75 F.2d 447; Kreiss Potassium Phosphate Co. v. Knight, 124 So. 751, 98 Fla. 1004; Savannah Bag Co. v. Citizens' Bank & Trust Co., 149 S.E. 710; Sieck v. Hall, 34 P.2d 844, 139 Cal.App. 279.

No damages have been proven which are recoverable for alleged breach of contract to make a loan.

36 A. L. R. 1416; 17 C. J. 865; Columbian Mutual Life Asso. Soc. v. Whithead, 101 S.W.2d 455; Traders' Land Co. v. Abbott Realty Co., 177 S.E. 335; McMillain Lbr. Co. v. First Nat. Bank of Eutaw, 110 So. 602.

The alleged parol contract to finance merged into written contract for extension to September, 1938.

Garcin v. Granville Iron Corp., 244 N.Y.S. 145.

The alleged promise to finance for another year would be a separate and independent contract and recoupment would not lie as against a suit on the note for the previous year's advances.

49 C. J. 310; 57 C. J. 338; Calhoun v. McNair, 166 So. 330, 175 Miss. 44; Denson v. Kirkpatrick Drilling Co. (Ala.), 144 So. 86; J. C. Lysle Milling Co. v. North Alabama Groc. Co., 201 Ala. 222, 77 So. 748.

OPINION

McGowen, J.

Appellee, Jackson Production Credit Corporation, sued appellant, Izard, for a balance due on two notes, one dated November 9, 1937, for $ 600, the other dated March 22, 1938, for $ 45, both bearing five per cent interest per annum, and both providing that the maker would pay a reasonable attorney's fee if suit were brought on the notes or a portion thereof. Attached to the declaration is an itemized statement showing the amount of the principal of the notes and the payments made thereon by Izard. This itemized statement shows payments at various times amounting to about $ 204.37. There was also a credit made on December 8, 1938, on account of a foreclosure amounting to $ 141. Interest was calculated and the expense of the foreclosure sale was added to the balance of the debt.

Appellant Izard filed a plea of the general issue and the following notice thereunder, to-wit:

"The plaintiff will take notice that upon the trial of this case the defendant will offer evidence to prove and will prove that the agents of the plaintiff came to his field in the month of June, 1938, and agreed with the defendant that if he would turn over to him his cotton check for the year 1938 that they would finance him for the year of 1939; that after said cotton check was turned over to the plaintiff, to-wit, on the day of , 1938, the defendant applied to the plaintiff for a loan, whereby he, the defendant, would be financed for the year of 1939; that said loan was immediately turned down and the plaintiff wholly failed and refused to finance the defendant, as they agreed to do.

"Whereby, as a result of the breach of the contract which was made and entered into by and between the plaintiff and the defendant the defendant has been damage in the sum of $ 401.70, which the defendant pleads by way of recoupment against the claim of the plaintiff, and asks that said amount be set off against the claim of the plaintiff."

Appellee replied to this notice and denied that any contract to finance the appellant had been entered into by it.

On a hearing of the case, the appellee established the balance due as being $ 351.55, for which amount the court gave a peremptory instruction to the jury in favor of the appellee; and further instructed them to find for the appellee such additional amount as reasonable attorney's fee as the evidence warranted. The jury rendered a verdict in favor of the appellee for $ 386.55, which included, as a reasonable attorney's fee, the sum of $ 35.

The court below excluded all of the evidence offered by the appellant on his plea of recoupment, so the only issue submitted to the jury was the amount of a reasonable attorney's fee.

The only error assigned here is the action of the court in excluding the appellant's evidence on his plea of recoupment.

It was shown by the cross-examination of Hamilton, the general agent and manager of the appellee, that he, in company with Ashley, field representative of the county, went to the field of Izard for the purpose of procuring an extension agreement of his indebtedness, which was then past due; that he procured this agreement, signed by Izard, which extended the debt from June 15, 1938, to September 15, 1938; and, that Izard delivered to him an assignment or order for a Government check due sometime in 1938, which was to be credited on the indebtedness. The aforesaid Government check was due on the cotton crop of that year.

The notes were executed by Izard for advances made by the appellee for the production of a vegetable crop for the year 1938. He also executed as security for the notes a chattel mortgage on certain livestock and personal property. In December, 1938, the appellee foreclosed this chattel deed of trust and credited the notes with the amount collected from the sale of the personal property. The evidence offered by the appellant was to the effect that the value of the livestock, wagon and plow tools was $ 401.70, and that by the forced sale thereof, in the foreclosure proceeding, he...