Morgan v. King

• Decision Date: 20 March 1922
• Docket Number: 22452
• Citation: 91 So. 30,128 Miss. 401
• Court: Mississippi Supreme Court
• Parties: MORGAN v. KING

91 So. 30

128 Miss. 401

MORGAN v. KING

No. 22452

Supreme Court of Mississippi

March 20, 1922

1 EVIDENCE. Account offered to establish indebtedness not excluded because not inherited.

An account offered in evidence to establish an indebtedness should not be excluded because some of the items therein are not itemized; such defect not going to the competency of the account as evidence, but to its value.

2 USURY. Statute strictly construed; creditor must be shown to have either contracted for or received interest in violation of the statute, which is for the jury where the evidence leaves issue in doubt. Chapter 299, Laws of 1912 (section 2075, Hemingway's Code), which provides for the forfeiture of both principal and interest if more than twenty per cent per annum is charged, is highly penal, and must be strictly construed. And even though the evidence shows that the creditor has charged the debtor in his account more than twenty per cent interest, this is insufficient to show a violation of the statute, for the evidence must go further and show that the creditor either "contracted for or received" more than twenty per cent; and if the evidence leaves this issue in doubt, it is a question for the jury.

3. FRAUDS, STATUTE OF. Contract under which goods are delivered to one person on credit extended to another not within statute; whether credit was originally extended in person sought to be charged is for jury on conflicting evidence. Where credit was originally extended to the party sought to be charged, and not to the party to whom the goods were delivered and used, such contract does not come within the provision of that clause of the statute of frauds, which provides that no action shall be brought whereby to charge a defendant upon a promise to answer for the debt of another, unless such promise be in writing signed by the party sought to be charged, because in such case it is not the debt of another, but the debt of the party sought to be charged And if the evidence is conflicting as to whether the credit was extended to the party sought to be charged or to the party receiving the goods, then it is a question for the jury.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR., Judge.

Suit by C. R. Morgan, trustee, against Alf King. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

R. H. Saway, for appellant.

At the conclusion of the evidence of this witness these exhibits having been introduced, the defendant moved the court to exclude the evidence and direct a verdict for the defendant for three reasons (shown at bottom of page 78 of the record) to-wit: First, that the accounts were not itemized. Second, that more than twenty per cent. interest had been charged. Third, that the accounts of the tenants were charged to the defendant without any writing, or other legal agreement making the defendant liable therefor.

The court, as I understand it, sustained the motion on the second ground, but I shall take these up for discussion in the order in which they appear in the motion.

There are two reasons why this objection is not well taken. First, the account and books were introduced by the defendant himself. Second, the account was sufficiently itemized to make the books evidence, and the only possible effect of the failure to give more fully the details would be on the weight of the evidence.

In the case of Newell v. Keith, 11 Vt. 214, the court referring to a charge much more general than these, says: "That it can constitute no valid legal objection that a charge is made in gross; that this is a matter for the consideration of the auditors and should call into exercise caution in the examination and allowance of the charge. In the case of Bassett v. Spofford, 11 N.H. 167, the court holds that a charge on a physician's book for visits and medicine, is sufficiently specific, although the quantity of medicine is not stated, and in case of Bay v. Cook, 22 N.J.L. , the New Jersey court holds that a charge on a physician's book embracing services for two or three days is sufficiently specific. While thereafter many cases holding that general charges in a book in the aggregate are not sufficient, this does not apply to charges of various items of merchandise sold and charged at one time and on one date. A fair example of this objectionable charge is shown in the case of White v. St. Phillips Church (S. C.), Reported 39 Am. Dec. 125.

Where the charge included furnishing and laying two thousand five hundred and forty-four feet of stone flagging, curb and gutter stone amounting to six hundred and thirty-six dollars, the objection was that it was not a record of daily business, or work. A charge on this book for instance of merchandise furnished during the month of July would have been insufficient, but a charge of merchandise furnished on a particular day to a particular person is sufficient. This seems to be the distinction drawn in the authorities generally.

I call the court's attention also to the following cases: We have in our own court three recent cases throwing much light on this subject. Finley v. Armstrong, 78 So. 177; Barner v. Rule, 77 So. 521; Duffy v. Kilroe, 76 So. 681.

The second ground of the motion, and upon which I understand the court below sustained the request for a peremptory instruction seems to me to be completely answered and settled by decision of this court. Doyle v. Herzog, 75 So. 760; Byrd v. Link, 79 So. 100. In order to sustain this motion on that ground there must have been interest at more than twenty per cent. per annum contracted or received. There is no proof in this case that any rates of interest was contracted for or received.

The third ground of the motion to-wit: that the defendant Alf King, could not be held for the accounts of his tenants, Jones, Holt and Taylor, because his contract to pay their accounts was not in writing seems to be under the evidence in this case to be entirely untenable.

Under the testimony of the witness Byrd these goods were not sold to these tenants on their own credit and they were never liable for the indebtedness, and the creditor did not look to them for it. This witness says, on pages 70 to 71, that these goods were sold to Alf King and on his credit, and that he never looked to the tenants, but looked solely to Alf King and that the accounts were run on the books in the name of the tenants for the convenience of Alf King, and so that he could tell what they owed. There was never any effort to assume any debt of Alf King. That this kind of a debt is not within the statute is expressly held by this court in at least two cases. Wallace v. Wortham, 25 Miss. 119. This case is reported with notes in 57 Am. Dec. 197. Hendricks v. Robinson, 56 Miss. 694. This case is also reported in 31 Am. Rep. 382, with notes in the latter addition on page 361.

It seems to me that the foregoing Mississippi cases settle all three of the contentions of the appellee adversely to him and beyond a question, and I respectfully submit that the judgment of the lower court should be reversed and the cause remanded for a new trial.

W. F. Gee, for appellee.

The appellee contends that all amounts owing to the M. & M. Planting Company has been paid, that they had no legal claim against him. First, because that a part of the account was not itemized, and for that reason fails to be such a charge against this appellee as can be collected under the law, and when stricken from the account as shown by the record there is nothing due by the appellee under the deed of trust. Second, because on certain items of money and merchandise charged to the appellee there was added interest at a greater rate than twenty per cent. per annum, which under the law forfeits the principal and interest and when this amount is charged from account, it leaves nothing due under the deed of trust. Third, because the accounts of Alex Jones, Will Holt, and Fred Taylor, was added to the account of the appellee, without any legal authority so to do, and when these amounts are stricken from the account as shown by the records, page 29, there is nothing due by the appellee under the deed of trust.

If the appellee is correct in either of the above contentions then this case should be affirmed. The account as shown by the record bears the appellee out in his contentions that if either of the above contentions is correct, the amounts claimed on account, if either be deducted there will be nothing owing by the appellee under the deed of trust. The real question then will be, is the appellee correct as a matter of law in either of his contentions?

That an account should be itemized so as to show the items and the amounts for each, or the amount charged per pound, or should be amended so as to show same. See Pipes v. Norton, 47 Miss. 61; Tierney v. Duffy, 59 Miss. 364; Bloom v. McGrath, 53 Miss. 249, and...