Lawhon v. Crow
| Decision Date | 22 November 1909 |
| Citation | 122 S.W. 999,92 Ark. 313 |
| Parties | LAWHON v. CROW |
| Court | Arkansas Supreme Court |
Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.
STATEMENT BY THE COURT.
The suit at bar was first instituted by the appellant before a justice of the peace of Saline County, to recover from the appellee a mule and two bales of cotton, which he had mortgaged to appellant to secure an open account for supplies advanced to him with which to make his crop. At each time appellee bought supplies of appellant he was furnished with an itemized list of each purchase and its price. Before suit was instituted under the mortgage given by appellee to appellant the appellee was served at three different times with a sworn statement of his account, showing the total balance due appellant. It is now admitted that these statements were not itemized, and it is further agreed that there were no credits due appellee, and that the amount of the account, so sworn to, was correct. The case was taken from the jury because of the appellant's failure to itemize his account, as required by section 5415 of Kirby's Digest.
Affirm.
Downey Rouse & Streepey, for appellant.
There was a substantial compliance with the statute in that on each occasion appellee bought goods he was furnished an itemized statement setting forth the separate articles bought and the price of each, and that on three different occasions before suit was brought appellant served appellee with a sworn statement showing the balance due. The statute is directory merely, and not mandatory. 4 Neb. 336; Sutherland, Stat. Con § 627; 34 Ark. 493; 30 Ark. 32, 38; 4 S. Dak. 195. It ought to be declared directory because it prescribes no penalty for failure to comply with its provisions. 7 Nev 106. A failure to serve appellee with an itemized statement of his account forfeits neither the account nor the mortgage. 65 Ark. 316.
J. S. Abercrombie and W. R. Donham, for appellee.
A statement merely showing the "total amount due" was not sufficient. An itemized statement, showing each article purchased and the price and showing each item of credit, was essential. Kirby's Dig., § 5415; 73 Ark. 589; 65 Ark. 316.
WOOD, J. (after stating the facts).
Section 5415 of Kirby's Digest is as follows: "Before any mortgagee, trustee or other person shall proceed to foreclose any mortgage, deed of trust, or to replevy, under such mortgage, deed of trust, or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due.
The statute is mandatory. Compliance with its terms is a prerequisite to the maintenance of a suit to replevin mortgaged property. This has already been practically decided by this court in Atkinson v. Burt, 65 Ark. 316, 53 S.W. 404, where we held that failure to furnish a verified statement might have been pleaded to a suit to foreclose or to replevy the property. Where a failure to comply with the statute may be pleaded as a defense, necessarily the statute is mandatory.
The purpose of the statute, as declared in Perry...
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