Starling v. Hamner

Decision Date23 May 1932
Docket Number4--2557
Citation50 S.W.2d 612,185 Ark. 930
PartiesSTARLING v. HAMNER
CourtArkansas Supreme Court

Appeal from Lafayette Chancery Court; J. Y. Stevens, Chancellor affirmed.

Decree affirmed.

Marsh McKay & Marlin, for appellant.

Henry Moore, Jr., for appellee.

OPINION

SMITH, J.

Without reciting or reviewing the conflicting testimony appearing in the record in this case, we announce our conclusion to be that the preponderance of this testimony establishes the following facts:

J. W Starling was engaged in farming a tract of land which he had contracted to buy, and the title to which was involved in a suit argued and submitted on the same date on which the instant case was submitted in this court.

The Hamner-Edwards Company, hereinafter referred to as the company, made advances to Starling to enable Starling to cultivate the land, and these advances were secured by a chattel mortgage on Starling's mules and a horse, upon his farming tools and implements, and upon all the crops grown on the farm.

On March 7, 1930, a settlement was had of the farming accounts, and it was agreed that the balance then due was $ 2,189.06. To secure this balance, a note was executed to cover, not only the balance, but the anticipated advances for the year 1931. The note thus executed was for the sum of $ 4,500, and bore interest at the rate of ten per cent. per annum from date until paid. It appears, however, that the true intention of the parties was that the mortgage should cover the amount which might be due upon foreclosure of the mortgage, and that the note was executed in order that the company might use it as collateral in securing advances made to it, and not to otherwise evidence the debt. This was in accordance with the custom under which they had previously operated.

The company was engaged in the general furnishing business, and it was contemplated that the advances should consist principally of supplies sold Starling at the company's store, although advances in money were made during the year 1931 slightly in excess of $ 700. Monthly statements were furnished to Starling of all advances. Goods were sold and charged at cash prices, and, on August 1st, a full and final settlement of the account was rendered, to which there was added 10 per cent. of the total "for time," as that item appeared on the account. This 10 per cent. charge was made only at that time. This addition was made to the cash advanced as well as to the price of the goods sold, and was the method employed to increase the credit prices 10 per cent. above the cash prices. The correctness of this account does not appear to have been questioned by Starling.

On January 2, 1931, Starling died. He was survived by his widow and certain children begotten by her. He was also survived by certain children by a former marriage. Starling's affairs were badly involved, and litigation was threatened between the widow and her children and Starling's children by his former marriage.

An appeal was made by Mrs. Starling to M. M. Hamner for advice and assistance. M. M. Hamner was not connected with the company, although the senior member of that firm was his relative, and M. M. Hamner had sold the farm to Starling, which the latter operated.

M. M. Hamner interceded for Mrs. Starling and made an agreement with the company by which its debt secured by the chattel mortgage was to be reduced to $ 2,500, which was to be paid in the following manner: Starling had left certain life insurance payable to his widow. M. M. Hamner agreed to pay the company $ 1,000, and pursuant to that agreement paid the company $ 1,000 in cash, and as security therefor took an assignment of the chattel mortgage and the debt which it secured to himself. The balance of $ 1,500 was to be paid by Mrs. Starling when she collected her insurance, and the insurance was collected, but Mrs. Starling declined to perform her agreement, which had been evidenced by a written memorandum thereof. She refused to comply with this agreement by paying the $ 1,500 which she had promised to pay, and, upon her cross-examination as a witness, declined to state why she did not do so. We think it fairly inferable from the testimony to say that two reasons induced this decision: The first was that she had adjusted her differences with her stepchildren, but the principal reason was that the mortgaged property was not worth the money which she had obligated herself to pay.

Although the company's mortgage and the debt which it secured were assigned to M. M. Hamner, we think there was no intention on his part to foreclose it until after Mrs. Starling refused to perform her contract. The mules were in thin order, and Mrs. Starling had no feed for them, and they were collected and turned over to M. M. Hamner with Mrs. Starling's consent. There was nothing to do with these mules but to feed them until farming operations began.

Upon the advice of M. M. Hamner, Mrs. Starling qualified on March 3, 1931, as administratrix of her husband's estate, and she approved the claim of Hamner against her husband's estate, and it was allowed and classed by the probate court. However, an appeal was later prosecuted from this probate order, which appears to be pending and undisposed of in the circuit court.

On March 24, 1931, (at which time Mrs. Starling had definitely declined to perform her contract by paying the $ 1,500 out of the insurance money which she had then collected) this suit was filed by M. M. Hamner to foreclose the mortgage which had been assigned to him. The company, as assignor of the debt and the mortgage securing it, was made a co-plaintiff.

The chancellor found that the debt secured by the mortgage at the time of the rendition of the decree from which this appeal comes was only $ 3,700. Just how this amount was arrived at is not clear, unless the court struck out of the account the charge for cash money advanced. Upon this finding it was decreed that "M. M. Hamner do have and recover of, from and against the property above mentioned (in the mortgage) the sum of $ 3,700 * * *," and that the lien of M. M. Hamner against said property "was superior and paramount to any rights of any of the other parties hereto." No personal judgment was rendered against any one, and the sale of this mortgaged property was ordered. Pursuant to this order of sale,...

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9 cases
  • Wilkins v. M & H FINANCIAL, INC., LR-C-78-406.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • August 30, 1979
    ...interest, thereby tainting the transaction with usury. The sale of goods for a profit of more than 10% is not usury. Starling v. Hamner, 185 Ark. 930, 50 S.W.2d 612 (1932); Blake Bros. v. Askew & Brummett, 112 Ark. 514, 166 S.W. 965 (1914). The plaintiffs claim that the total profit, when a......
  • Dowell v. Slaughter
    • United States
    • Arkansas Supreme Court
    • May 23, 1932
  • Brown v. Polk, s. 5-1828-5-1830
    • United States
    • Arkansas Supreme Court
    • April 13, 1959
    ...the crop loans were separate and independent contracts, so that the invalidity of the one would not affect the other. Starling v. Hamner, 185 Ark. 930, 50 S.W.2d 612; Hirsch v. Perkins, 211 Ark. 388, 200 S.W.2d 796; Hughes v. Holden, Ark., 316 S.W.2d 710. That the furnishing account balance......
  • Manhattan Credit Co. v. Brewer, 5-2278
    • United States
    • Arkansas Supreme Court
    • January 9, 1961
    ...conditional sales contract, citing White River Production Credit Association v. Fears, 213 Ark. 75, 209 S.W.2d 294, and Starling v. Hamner, 185 Ark. 930, 50 S.W.2d 612. We find that most of our decisions in this connection have dealt with conditional sales contracts, and we do not find that......
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