Pearson v. Kendrick
| Decision Date | 28 February 1898 |
| Court | Mississippi Supreme Court |
| Parties | LELAND L. PEARSON ET AL. v. SIMON R. KENDRICK ET AL |
December 1894
FROM the chancery court of Bolivar county HON. A. H. LONGINO Chancellor.
In the year 1889, W. H. Jeffreys was doing business as a merchant in his own name at Duncan, in Bolivar county, Mississippi, and continued in the mercantile business, alone, until some time during the month of January, 1890, he formed a partnership with Burbridge & Houston, under the firm name of W. H Jeffreys & Co.; Jeffreys owning a one-third interest in the firm. At that time, and for a number of years subsequent thereto, Burbridge & Houston were doing a mercantile business in Panola county, at Batesville, Mississippi.
The appellee, Kendrick, did a credit business with W. H. Jeffreys in 1889, and, at the time of the formation of the partnership of W. H. Jeffreys & Co., Kendrick owed Jeffreys a balance on open account of $ 200.83, and also owed to one Block a balance of $ 803.17, on which interest had accumulated to the amount of $ 100.40, and after the formation of the partnership of W. H. Jeffreys & Co., they, Jeffreys & Co., at the request of Kendrick, as they allege, purchased or paid off the account to Block, and Kendrick then executed his note to Jeffreys & Co. for $ 1, 104.47, the balance due on his dealings with Block and W. H. Jeffreys, securing the said note by a trust deed on his property in Bolivar county Mississippi, and thereafter, during the year 1890, continued to do a credit business with W. H. Jeffreys & Co. At the close of the year 1890, Jeffreys claimed that there was a balance due thereon, then amounting to about $ 2, 700.
About this time Kendrick applied to Burbridge & Houston, composed of W. P. Burbridge and R. P. Houston, who were then the partners of Jeffreys, and, together with him, composing the firm of Jeffreys & Co., and arranged with them to advance him the sum of $ 3, 000, which appellants claim was for the purpose of paying off the account of Jeffreys & Co.; the balance, after the payment of the account, to be used by Kendrick in supplies and merchandise obtained from Jeffreys & Co. Kendrick, on the other hand, claimed that he was to get the $ 3, 000 in cash to enable him to make a payment on the purchase money due on his farm, mentioned in the trust deed, and to enable him to buy additional mules and to clear and cultivate more land.
Burbridge & Houston borrowed from R. H. Moore $ 3, 000, and placed the same to the credit of S. R. Kendrick on the books of W. H. Jeffreys & Co. As security for this sum, Kendrick and wife, the appellees, on January 27, 1891, executed and delivered to Burbridge & Houston their promissory note for $ 3, 075, and secured the same by a trust deed on said lands, and upon two mules, one horse and wagon, and also upon all of the crops of cotton and agricultural products to be raised on the lands during the year, the trust deed providing for the payment and security of the said promissory note, and also for such further advances as might be made to the said S. R. Kendrick by Burbridge & Houston during the year 1891.
On the fifth of March, 1892, it being claimed that the appellee, Kendrick, was indebted to Burbridge & Houston in the sum of $ 4, 093.84, represented by the promissory note for $ 3, 075, then past due and unpaid, and the remainder of the said stun being the balance due Burbridge & Houston on the business of S. R. Kendrick for supplies advanced him during the year 1891, and on the said fifth day of March, 1892, Kendrick and wife executed in favor of Burbridge & Houston their trust deed securing two notes; one of said notes being the note for $ 3, 075 above mentioned, and the other being for $ 1, 018.84, and for such further advances as should be made to Kendrick during the year 1892. They continued their business relations under these instruments until the seventh of April, 1894, at which time it was claimed that S. R. Kendrick was indebted to Burbridge & Houston upon his open account, exclusive of the $ 3, 075 note, in the sum of, $ 1, 888.65, and, accordingly, on that date, April 7, 1894, he and his wife executed and delivered to Burbridge & Houston their promissory note for $ 1, 888.65, securing the same, together with such further advances as should be made to them during the year 1894, by another trust deed to L. D. Nickles, trustee, conveying the lands above mentioned. This note for $ 1, 888.65 represented, or was said to represent, the full balance due by Kendrick on all advances made to him by Burbridge & Houston, exclusive of the balance due on the note for $ 3, 075.
On the first day of January, 1895, there was a payment of $ 308.66 made by Kendrick, which amount was duly credited on the back of the note of $ 1, 888.65 last mentioned. The appellants claim that with the exception of this credit of $ 308.66 no part of either of the said notes of $ 3, 075 or of $ 1, 888.65 has ever been paid, but that the entire balance due on the said notes remains now wholly due and unpaid.
The appellee, Kendrick, claims that there is nothing due on either of said notes, and that the appellants have no right to recovery thereon, because he claims that he is entitled to credit in his account with Burbridge & Houston, and with W. H. Jeffreys & Co., for numerous items of overcharge, and of erroneous charges, and of usurious charges in their accounts, a statement of which is in the record.
The appellant, Pearson, is the owner of the said promissory notes and trust deed by purchase and regular assignment to him of the same.
On August 11, 1896, Wright and Nickles, trustees named in the trust deeds, and L. L. Pearson, filed their bill in the chancery court of Bolivar county, setting up their rights under the trust deeds, asking foreclosure and the appointment of a receiver. The receiver was appointed, but afterwards a decree discharging the receiver was rendered, from which another appeal was prosecuted to this court, and the decree discharging the receiver was reversed and the cause remanded to the chancery court for further proceedings. Pearson v. Kendrick, 74 Miss. 235.
On October 15, 1896, under the terms of the trust deed, the lands were advertised for sale, and were purchased by the appellant, Pearson, who received deeds therefor, which are attached to the supplemental bill as exhibits thereto. After the sale of the lands, and the purchase thereof by Pearson, he filed his supplemental bill against the appellees and against Wright and Nickles, who were made defendants to the supplemental bill, in which Pearson reiterated all of the charges and complaints made in the original bill, and alleged that since the last term of the chancery court [September, 1896] he had purchased the lands at the trustee's sale above mentioned, receiving deeds therefor, which he attached as exhibits to the supplemental bill, and that, by virtue of these conveyances to him, he became and was the owner of the land, and that all of these matters had arisen since the filing of the original bill, and since the last term of the court, and that he, Pearson, was entitled to have his interest in the lands established and his title thereto confirmed, and that if mistaken, he was still entitled to insist upon the prayer of the original bill; the ascertainment of the amount due on the said notes and the foreclosure of the liens as therein prayed.
The appellees answered, denying the rights of appellant, Pearson; denying all the equity in the bill; denying the indebtedness on the notes, and denying that the notes constituted a legal charge, because of the failure on the part of W. H. Jeffreys & Co., or of W. H. Jeffreys, or of Burbridge & Houston, to take out proper privilege licenses, as provided for by the laws of this state.
A large amount of testimony was taken by both parties, the said Kendrick denying, by his own deposition and evidence, that he ever had a full settlement of his accounts with W. H. Jeffreys & Co., or with W. H. Jeffreys alone, or with Burbridge & Houston.
Houston testifies that Kendrick had repeatedly acknowledged the correctness of the account; that he had never disputed the same at all, and that he was always fully aware of the claims against him, and always acknowledged the correctness and justice of those claims. Jeffreys also testifies that he had repeatedly given Kendrick statements of his account, while he [Kendrick] was dealing with him [W. H. Jeffreys or W. H. Jeffreys & Co.], and that at no time had Kendrick ever disputed the account, but, on the contrary, had acknowledged the correctness of the same, and that it was justly due. Copies of the account of Kendrick with W. H. Jeffreys and with W. H. Jeffreys & Co., were placed in evidence, and it appears by pencil memoranda on said accounts that at different times statements were regularly rendered to him.
It further appears from the account of Kendrick with W. H Jeffreys & Co., that he was, on February 3, 1891, credited by cash $ 3, 000, and that he was charged on said account, February 3, 1891, with his note for $ 1, 104.47, and interest thereon $ 27.61, making a total of $ 1, 132.08, with note for $ 770 and interest $ 19.25, making a total of $ 789.25, and with note for $ 344.80, and that he continued to obtain goods on his account to February 27, 1891, at which time he ceased to have any further dealing whatever with W. H. Jeffreys or W. H. Jeffreys & Co. The two notes of $ 770 and $ 344.80 were notes due by Kendrick for the purchase money on a gin outfit and machinery purchased from Block, as shown by the testimony in the cause, and by the gin account in evidence in the record. The note for $ 3, 075 was never charged against Kendrick in the account with W. H. Jeffreys & Co., or in his account...
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