Smythe v. Allen

• Decision Date: 28 October 1889
• Citation: Smythe v. Allen, 67 Miss. 146, 6 So. 627 (Miss. 1889)
• Court: Mississippi Supreme Court
• Parties: M. S. SMYTHE v. GREEN ALLEN

6 So. 627

67 Miss. 146

M. S. SMYTHE v. GREEN ALLEN

Supreme Court of Mississippi

October 28, 1889

FROM the circuit court of Leake county.

By consent, EDWARD CURRIE, ESQ., presided in the trial of this case.

The facts are stated in the opinion of the court.

Reversed and remanded.

Calhoon & Green, for appellant.

1. Appellee's tenth instruction is erroneous. It entirely ignores intent, and told the jury that all interest was to be forfeited if the "effect" of the transaction was an excess in charge of interest. If it is the law, a man may be ruined by accident or mistake. There must be an agreement by which the borrower "knowingly promises" and the lender "knowingly receives" more than legal interest, with an intention to violate the statute. Bank v. Shodgrass, 4 How. 573. See, also, Bank v. Waggener, 9 Pet. 379.

The evidence for appellant was that there was no corrupt agreement for usury, and the instruction took this from the consideration of the jury.

2. The seventh instruction for defendant is also erroneous. The transaction was simply a purchase of the note from the county, but the testimony of Mrs. Smythe to this effect was ignored by the instruction. The county was pressing Houston and agreed to take $ 125 in compromise. It was not usury for Mrs. Smythe to agree to pay this on his promise to pay her $ 180, the full amount of the note.

3. This verdict is against the evidence, and is based on prejudice against a money-lender. It devolves on one setting up the highly penal statute against usury to make clear proof. Courts will not take snap shots at the sound of usury; they want to see it before firing.

Beauchamp & Sullivan, for appellee.

The sole question is as to the usurious interest charged. The evidence for defendant fully warranted the verdict, and although plaintiff's testimony conflicted with it, the court will not reverse. Garrigan v. The State, 55 Miss. 533; Bower v. Henshaw, 56 Ib. 619; 48 Ib. 420; 53 Ib. 171. On the conflicting evidence the jury could have found either way.

The amount charged Houston on account of the note paid the county was usurious as to fifty-five dollars. Mrs. Smythe merely loaned him the money to pay the county on the compromise, and had no right to charge him with the full amount of the note.

Plaintiff testified that she discounted Eastwood's notes from four hundred and fifty-five to four hundred dollars, but this is contradicted, and the jury found for defendant, as was its province.

G. B Huddleston, on the same side.

OPINION

WOODS, C. J.

This was an action brought by the appellant, on the joint and several promissory note of the appellee and one Houston, against the appellee alone. The defense set up was that the note sued upon was given for a balance found to be due, on a settlement made between the appellant and Houston, and that this balance was wholly usurious interest.

The evidence offered by appellee tended to show that usurious interest on two promissory notes theretofore made by Houston to appellant constituted a part of the balance so found to be due from Houston to the appellant, and for which the note sued on was given; and that the difference between $ 125, the amount paid the county of Leake for and on account of another note of Houston, and $ 180, the amount which Houston shortly afterwards paid the appellant, in taking up this note in their settlement, was likewise usurious interest, and that this usurious interest, also, made part of the balance for which the note sued on was given.

The evidence offered by the appellant tended to show that, when the two first-named notes, made by Houston to the appellant, were executed, there was only interest contracted for and charged at the rate of ten per cent. per annum, but that through inadvertence both notes were made to mature a short time before it was intended they should mature; and that there was no usurious interest charged or collected on the promissory note, which Houston had made to the county of Leake and which the appellant had acquired from the county, the appellant becoming the owner of this note at Houston's suggestion, and with the understanding that he should pay the same in full.

There are several causes assigned for error, but we deem it necessary to notice two only.

1. The seventh instruction, given by the special judge who presided in the trial of...