Rector v. Suncrest Lumber Co.

• Citation: 52 F.2d 946
• Decision Date: 12 October 1931
• Docket Number: No. 3181.,3181.
• Parties: RECTOR v. SUNCREST LUMBER CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

52 F.2d 946 (1931)

RECTOR v. SUNCREST LUMBER CO.

No. 3181.

Circuit Court of Appeals, Fourth Circuit.

October 12, 1931.

John H. Cathey, of Asheville, N. C., for appellant.

Thomas L. Johnson, J. Bat Smathers, and Thomas S. Rollins, Jr., all of Asheville, N. C., for appellee.

Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.

SOPER, Circuit Judge.

James E. Rector of North Carolina brought a suit, subsequently removed to the District Court, against the Suncrest Lumber Company, a Delaware corporation, to recover the sum of $14,522.28. He charged that under duress he had paid the company $7,261.14 as interest on a debt at an illegal and usurious rate, and that he was therefore entitled, under the provisions of section 2306 of the Consolidated Statutes of North Carolina, to recover back twice the amount paid. The company filed an answer denying the charge. A jury trial was waived and the parties agreed that the District Judge should find the facts and render judgment thereon as if they had been found by a jury. The District Judge found the facts in substance as follows:

The suit grew out of a written contract of March 27, 1923, wherein the company agreed to sell certain land to Rector for $75,000, of which Rector paid $10,000 in cash and agreed to pay the balance of $65,000 on June 27, 1923, with interest at 6 per cent. per annum. He failed to make the deferred payment as agreed, and on May 4, 1924, the company brought a suit in equity against him in the court below demanding judgment for $65,000 and interest, and praying that the land be sold to satisfy the debt. An answer was filed admitting the debt, and on August 11, 1925, a decree was passed wherein it was adjudicated that the company recover from Rector $65,000 with interest at the rate of 3 per cent. from March 27, 1923, to July 31, 1925, and thereafter at the rate of 6 per cent. per annum with costs; but he was allowed until January 5, 1926, to pay the money. It was further decreed that if he should fail to make the payment on or before January 5, 1926, the land should be sold at public auction by a special master named in the decree. Rector failed to pay, as decreed, and the special master accordingly advertised a sale of the land to take place on March 1, 1926. During the interval Rector resold the land to one Byrd for $100,000 and secured from Byrd $73,346.66, a sum of money sufficient to pay the indebtedness with interest, and the court costs and expenses of the sale estimated at $1,500, and on March 1, 1926, before the sale took place, deposited the money with the clerk of the court for the use and benefit of the company. Rector then appeared at the place of sale, announced the deposit, and objected to the sale taking place. But the company persisted in the sale and bid in the property for $77,000. The special master filed his report of sale on March 4, 1926. On March 18, 1926, before the expiration of the time for final confirmation of the sale, Rector entered into an agreement with the company under which he agreed to pay to the company $77,000, the amount of its bid, on condition that the company give him a deed in fee simple to the land. This agreement was fully performed by the parties; and Rector, having secured a deed to the property, conveyed it in turn to Byrd. Afterwards, on April 9, 1926, a decree was entered in the foreclosure suit, by consent of the parties, wherein it was recited that all matters in controversy between the parties had been fully compromised and settled, and it was adjudicated that the judgment of August 11, 1925, be set aside, the sale by the special master be declared null and void, and the suit be dismissed.

Upon this state of facts, the District Judge concluded that if Rector had felt aggrieved at the action of the company in going on with the sale despite his deposit and protest, he should have filed exceptions to the sale; but instead, having voluntarily agreed to pay $77,000 for the land as aforesaid, and having consented to the final judgment of April 9, 1926, he was conclusively barred from bringing the pending suit. Accordingly, the District Judge held that the company was not indebted to Rector and judgment was entered for the company with costs. From this judgment Rector has appealed.

He claims that the evidence showed that the entire indebtedness with interest to July 31, 1925, as fixed by the decree of August 11, 1925, together with costs of suit, did not exceed $69,738.86; nor was it more than $72,013.86 on March 1, 1926, when the...