Miley v. Steedley

• Decision Date: 13 November 1972
• Docket Number: No. 9068,9068
• Citation: 269 So.2d 522
• Parties: Leo MILEY v. William Franklin STEEDLEY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 522

269 So.2d 522

Leo MILEY v. William Franklin STEEDLEY et al.

No. 9068.

Court of Appeal of Louisiana, First Circuit.

Nov. 13, 1972.

Kenneth E. Barnette, Seale, Smith & Phelps, Baton Rouge, for appellant.

Ashton L. Stewart, Laycock & Stewart, Baton Rouge, for appellees.

Before LANDRY, TUCKER and CUTRER, JJ.

TUCKER, Judge.

This is a proceeding by executory process on two notes executed by Mr. and Mrs. W. F. Steedley and their son Jimmie C. Steedley, and secured by a mortgage on defendants' home and a chattel mortgage on their Dodge automobile and household furnishings. Only Mr. and Mrs. W. F. Steedley were named in the executory process; however their son Jimmie joined them in the petition for an injunction to halt the sale of the security, on the basis of payment of the notes, and for damages and attorney fees. They alleged, also, that usurious interest had been charged and asked for return of the overpayment on the two notes. Later they amended their petition to plead violation of the Direct Vehicle Loan Act and to ask for penalties under that act. Plaintiff Miley, defendant in Rule, denied payment and usurious interest and plead two-year prescription under Civil Code Article 2924.

An interlocutory judgment was granted issuing a preliminary injunction against the sale of the mortgaged property. Plaintiff Miley has appealed alleging that the trial court erred (1) in allowing inadmissible testimony and evidence over timely objections; (2) in adhering to its own rulings and failing to consider the plea of two-year prescription under C.C. Art. 2924; and (3) in failing to follow the holding in Thrift Funds of Baton Rouge, Inc. v. Jones, 259 So.2d 587 (La.App.1st Cir. 1972).

Admissibility of Evidence:

We find the trial judge correct in his admissibility of evidence both at the time of the trial and later under offer of proof, which relates to financial transactions between the parties herein involved from 1963 to date. Although the notes sued upon are dated 1968, which leads appellant to argue that notes dated prior to two years before that date prescribed under the provisions of C.C. Art. 2924, and cannot be offered in evidence, a careful reading of All provisions of Article 2924 reveals the following: '.......... Provided however where usury is a defense to a suit on a promissory note or other contract of similar character, that it is permissible for the defendant to show said usury whether same was given by way of discount or otherwise, by any competent evidence.' Wherein the Steedleys offered notes and other evidence dated more than two years prior to the 1968 dates of the notes to show usury as a defense to appellants' suit, it was properly admissible as 'competent evidence,' despite the trial judge's citation in his reasons for judgment of Lawrence v. Durr, 195 So.2d 337 (La.App.4th Cir. 1967), which does not apply.

Appellant has complained about the trial judge's admission of unauthenticated bank statements to prove payments. We find that counsel for appellee carefully laid the groundwork for the admission of these xeroxed copies of bank statements and check stubs by proving that the original checks and statements were unavailable. Furthermore, the Steedleys and Mileys have testified to the validity of the respective copies which they had reason to recognize.

The trial judge erred in permitting parole evidence to vary the face of the note dated June 14, 1968, which Jimmie Steedley testified was actually made in 1965, but the information for which this note was submitted in evidence is contained in Exhibit O.P. No. 4.

Applicability of Direct Vehicle Loan Act:

The trial judge was correct in holding the Direct Vehicle Loan Act inapplicable to the facts of this case as urged by appellees both in their alternative petition and on appeal. There is no direct evidence to support appellee's claim that appellant Miley had ever made any loans for the purchase of automobiles except in one other instance besides the one involved in this case. We agree with the trial judge that Mr. Miley can hardly be considered a 'person engaged in whole or in part, in the business of lending money on promissory notes . . . secured by liens on motor vehicles,' within the meaning of R.S. 6:970, and therefore subject to its penalties.

Facts and Law: ($10,526.82 Note)

The two notes executed by the Steedleys which are the basis of the present suit were both dated April 8, 1968, in the face values of $10,526.82 and $7,925.00, with claimed balances due, respectively, of $5,328.08 and $1,942.81. Each note was secured by a chattel mortgage on defendants' 1968 Dodge automobile and defendants' household furniture. Each note was secured, also, by a separate mortgage on defendants' home. Each note was payable in monthly installments and each note bore interest at the rate of 8% Per annum from maturity. Both notes were signed by Jimmie Steedley, defendants' son, as well as by his mother and father, all of whom joined in the present action for an injunction. Monthly installments of $200.00 were fixed and set on this $10,526.82 note. It was the last of a series of notes, but actually represented only two loans. Defendants have alleged payment of the principal of the note and also have urged the defense of usurious interest charged by the plaintiff-appellants.

The balances from three other notes were incorporated into the $10,526.82 note, as set forth below:

I. $3,844.80 Loan from Mr. Miley to Mr. and Mrs. W. F. Steedley, dated June 12, 1963 (Exhibit Miley No. 28, O.P. No 5):

The evidence of this loan consists of itemizations in the handwriting of Mr. Miley, bearing a notation at the top of the page, 'Actual Loan.$3801.80.' Simple arithmetic, however, shows that this loan was actually for $3,844.80.

The amount of the note is set forth below:

                (1)   W. F. Steedley & American Bank .... $1,670.99
                (2)   W. F. Steedley & Dial Finance ...... 1,268.07
                (3)   W. F. Steedley & Term Plan
                      Finance .............................. 610.00
                (4)   W. F. Steedley & Walter Krousel
                      Jr., Atty.............................. 25.00
                (5)   Insurance on W. F. Steedley's
                      life ................................. 183.00
                (6)   Check to W. F. Steedley ............... 87.74
                (7)   Interest & Misc.  Charges to
                      August 15, 1963 .................... 3,231.72
                                                          ---------
                                                          $7,076.52
                

This loan was secured by a $9,000.00 collateral mortgage note, dated June 8, 1963, on W. F. Steedley's home (Exhibits O.P. 9 & 10), and also by a chattel mortgage on W. F. Steedley's 1960 Buick Electra automobile and his household furniture (Exhibits X-Miley No. 1, O.P.W. No. 13; and X-Miley No. 2, O.P.W. No. 14). Both of these notes also were signed by the Steedleys' son Jimmie.

Additional handwritten Miley sheets (O.P. No. 2 & O.P. No. 3) show the monthly payments to be paid on this loan and those actually paid . Other handwritten Miley records show the actual cost of the account (Miley No. 29, D. No. 6), plus a miscellaneous charge of $50 .00 to Tommy Bissel for bringing Steedley to Miley as a customer, and the amount of cash to be loaned (D No. 7). The stubbs from Miley's checkbook (O.P. No. 6, 7 & 8) show the sum received by W. F. Steedley as set forth in Exhibit Miley No. 29, D No. 6, while Exhibit O.P. No. 11 provides a tabulation of same.

The very important conclusion to be drawn from the foregoing is that the 1963 loan was for $3,844.80 as principal, and $3,231.72 as discounted interest.

W. F. Steedley actually paid 29 monthly installments totaling $4,219.21 (Exhibits O.P. Nos. 2 & 3). The record of payments had a notation of 'New note in addition $309.17,' with a claimed balance of $3,166.48 on this loan. Thereafter Mr. Steedley requested Mr. Miley to reduce his payments and a new note was executed, as set forth hereafter.

II. $5,988.96 demand note, signed by Mr. and Mrs. Steedley, dated February 7, 1966, bearing interest of 8% From its date. (See Exhibits S No. 1, D No. 11):

Notations on Miley's records (Exhibits O.P. No. 3 and No. 7) show that the balance from the June 12, 1963, loan of $3,166.48 was included in this new note, plus $2,822.48 capitalized interest. This was also confirmed by the testimony of witnesses. The same two $9,000.00 notes mentioned above were given in pledge for the new note.

W. F. Steedley paid 24 monthly payments of $83.18 on this note through January 13, 1968, making a total of $1,996.32, and leaving a claimed balance of $3,986.64 (Exhibit Miley No. 7).

Meanwhile Steedley purchased a new Dodge automobile from Standard Motor Car Company on January 17, 1968 (D. No. 21), in a transaction which had no connection with the February 7, 1966, note. Steedley financed this automobile through a note and chattel mortgage for $3,444.00 with three monthly payments of $1,148.00 each (Exhibits S Nos. 1 & 2). Later Miley paid the automobile indebtedness of Steedley by three checks of $1,148.00 each (Exhibits D Nos. 17, 18, & 19), dated February 17, 1968, March, 1968, and April 16, 1968.

III. $6,706.54 demand note signed by Mr. and Mrs. Steedley, dated Feb. 9, 1968, bearing 8% Interest from date (See Exhibit D--12):

Prior to making the payments for Steedley on his Dodge Miley obtained a demand note from the Steedleys, endorsed by their son Jimmie, bearing interest of 8% From its date. On the reverse side of the note there was handwriting indicating that the note was to be paid at the rate of $83.18 per month, 'being 15 March 1968 w/int. at 8% On unpaid bal. each month from date.' This note contained $3,262 .54 discounted interest.

Exhibit Miley No. 7 shows this note as follows: '2--14--68 New Loan $6,706.54 Int. 8% On unpaid bal.' Then a total of this note for $6,706.54 and the balance of $3,986.64 on the February 7, 1966, note are shown combined on this record of payment for a total of $10,693.18, and noted to be a new loan 'to be paid $166.36 per month.' A payment...