Manning v. Elliott Bros.
| Decision Date | 28 February 1885 |
| Citation | 92 N.C. 48 |
| Court | North Carolina Supreme Court |
| Parties | MCG. MANNING v. ELLIOTT BROS. AND J. P. ELLIOTT, Trustee. |
MOTION to continue a restraining order until the hearing, made before Shepherd, Judge, at Spring Term, 1884, of PITT Superior Court.
The plaintiff alleged in his complaint, that on January 17th, 1883, he borrowed of the defendants the sum of $2,000, and executed to them a bond signed by himself and his wife, payable on the 1st day of December, 1883, with interest at six per cent. That to secure the payment of this bond, plaintiff and his wife executed a mortgage to J. P. Elliott, as trustee, on his farm in Pitt county. That as part of the consideration for the loan, the defendants (who were commission merchants) required the plaintiff to ship them for sale 100 bales of cotton, or in lieu thereof should pay them during the year 1883, $150. He further alleged, that in pursuance of this contract, during the year 1883, he shipped six bales of cotton to the defendant, but had declined to ship any more, because the returns of sales made to him by the defendants were wrong and unjust, and that on November 29th, 1883, he had paid the defendants the sum of $100 in cash; but that no part thereof, nor of the proceeds of the sales of cotton had been applied to the mortgage debt, but that these sums had been applied to the payment of the $150--and of an additional charge of 2 1/2 per cent. for the loan of the money. He further alleged, that on account of the said 2 1/2 per cent., and sum of $150, which were in addition to the legal interest, the contract between him and the defendants was usurious and illegal. The relief asked was, that the defendants be restrained from proceeding under the mortgage, and that the contract of January 17th, 1883, be declared usurious.
The defendants, in their answer, say that they are commission merchants in the city of Baltimore, and only loan money to those persons who deal with them, and upon an understanding that the loans so made should be considered as allowances, upon which a commission of 2 1/2 per cent. should be paid, and that the person to whom loans were made should ship cotton to them for sale at the rate of five bales for each $100 loaned, or otherwise should pay the legitimate commission thereon which they would have received if such cotton had been actually shipped. The defendants further say that the $100 has been credited on the bond of January 17th, 1883, and that the proceeds of the cotton have been paid to the plaintiff by paying his drafts on them for the full amount of such proceeds.
It was admitted by the plaintiff's counsel that the plaintiff had drawn upon the defendant at the time of the shipment of the cotton, and it was further admitted that, after giving the plaintiff every credit he claimed for said cotton on account of unfair returns, the amount in controversy would not exceed $25.
The defendants agreed to surrender all claim against the plaintiff for failure to ship the cotton to them.
The mortgage provided that in case of failure to pay the bond at maturity the trustee might at once advertise for 30 days, and sell said land for cash, or on credit, as he might think best. It contained no provision for any notice to the mortgagor before advertising.
Upon these facts, His Honor refused to continue the restraining order to the hearing, and adjudged, further, that unless the plaintiff pay the sum of $2,000, with interest at 6 per cent., less the $100 paid November 28th, 1883, and less the $25 in controversy, into court within sixty days from the date of the order, then the trustee mentioned in the mortgage shall proceed to sell the mortgaged lands according to the terms of the said mortgage.
From this judgment the plaintiff appealed.
No counsel for plaintiff.
Messrs. Haywood & Haywood, for the defendants .
We cannot hesitate to affirm the judgment of the court below. It manifestly granted all that the plaintiff could in conscience ask, and, perhaps, more than in strictness he was entitled to have.
If it be granted that the several things agreed to be done were all essential parts of the same contract, as alleged in the complaint, (and this is by no means certain), and that the contract was in any aspect of it usurious, nevertheless, every usurious feature of it was abandoned and surrendered by the defendants, and the court simply allowed them the money due them and the lawful interest thereon.
The plaintiff, a...
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Owens Et Ux v. Wright
...from July 1, 1911, " and that the $664.25, the amount in Mr. Reade's hands, be applied pro tanto to its payment In the case of Manning v. Elliott, 92 N. C. 48, Justice Merrimon, referring to the maxim that he who asks equity must do equity by paying the principal and legal interest, says it......
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Owens v. Wright
... ... Guthrie & Guthrie and Manning & Everett, all of Durham, for ... appellants ... Fuller & Reade and Bryant & ... Reade's hands, be ... applied pro tanto to its payment. In the case of Manning ... v. Elliott, 92 N.C. 48, Justice Merrimon, referring to ... the maxim that he who asks equity must do equity ... ...
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Corey v. Hooker
...and asks relief against a usurious contract, he must pay the defendant the money justly due him, with legal interest thereon. Manning v. Elliott, 92 N.C. 48; Purnell Vaughan, 82 N.C. 134; Ballinger v. Edwards, 39 N.C. 449; Beard v. Bingham, 76 N.C. 285; Simonton v. Lanier, 71 N.C. 498; Cook......
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Corey Et Ux v. Hooker
...and asks relief against a usurious contract, he must pay the defendant the money justly due him, with legal interest thereon. Manning v. Elliott, 92 N. C. 48; Purnell v. Vaughan, 82 N. C. 134; Ballinger v. Edwards, 39 N. C. 449; Beard v. Bingham, 76 N. C. 285; Simonton v. Eanier, 71 N. C. 4......