Sumner v. Adel Banking Co.
| Citation | 259 S.E.2d 32,244 Ga. 73 |
| Decision Date | 05 September 1979 |
| Docket Number | 34725,Nos. 34724,No. 34724,s. 34724,34724 |
| Parties | SUMNER v. ADEL BANKING COMPANY. SUMNER v. FORD MOTOR CREDIT COMPANY. . , |
| Court | Georgia Supreme Court |
Elsie H. Griner, J. Laddie Boatright, Hazlehurst, for appellant.
Griffis & Thomas, Tom W. Thomas, Adel, Arthur K. Bolton, Atty. Gen., for appellee (No. 34724).
English & Rountree, M. Dale English, John W. Rountree, Jr., Adel, Arthur K. Bolton, Atty. Gen., for appellee (No. 34725).
Sumner conducted farming operations in Cook County on farmland leased for that purpose. He defaulted on four notes for loans secured by crops and farm equipment made by Adel Banking Company and upon three retail sales contracts for the purchase of farming equipment executed by Roberson Tractor Company and assigned to Ford Motor Credit Company. Upon default, appellees foreclosed security agreements executed by Sumner and sought writs of immediate possession of their collateral under Code Ann. §§ 67-709 through 67-718 (Ga.L.1975, pp. 1213, 1215). Among his enumerations of error, appellant complains these Code sections providing for a writ of possession in a commercial transaction 1 where it is in the power of the defendant to conceal, waste, encumber, convert, convey or remove the property from the court's jurisdiction, violate due process and equal protection. He argues the statute provides an opportunity for filing post-seizure defenses and a hearing before a judge, but it does not provide a hearing prior to seizure. He also claims the contracts signed with both appellees are usurious. We affirm.
1. We conclude Ga.L.1975, pp. 1213, 1215 (Code Ann. §§ 67-709 through 67-717) is constitutional, and a hearing prior to seizure is not required where there is full compliance with the statute. ". . . (T)he initial hardship to the debtor is limited, the seller has a strong interest, the process proceeds under judicial supervision and management, and the prevailing party is protected against all loss." Mitchell v. W. T. Grant Co., 416 U.S. 600, 618-619, 94 S.Ct. 1895, 1906, 40 L.Ed.2d 406 (1974). See Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978). There was no error in refusing to quash the levy or dismiss the complaint in either case.
2. (a) Appellant contends the loans by Adel Banking Company in Case # 34724 were usurious at the outset, because they exceeded the highest interest rate that could have been charged under any provision of the law. However, he concedes appellee was entitled to charge interest on the instruments in question at rates not exceeding the limits set by the laws of the state (Code Ann. § 41A-1313) and that under Code Ann. § 57-101, on a loan to make crops, a rate of nine percent could be charged as it was on the four loans here. A review of these notes shows they are not usurious even though we conclude there was a mistake in computation of the interest on loan exhibits "A" and "B". 2 A mistake in calculation or by inadvertence, not shown to be part of a usurious design or otherwise intentional, does not make a loan usurious. Bellerby v. Goodwyn, 112 Ga. 306, 308, 37 S.E. 376 (1900); Loganville Banking Co. v. Forrester, 143 Ga. 302, 84 S.E. 961 (1915); Rushing v. Willingham, 105 Ga. 166, 31 S.E. 154 (1898). Accord, Stedham v. Swift & Co., 79 F.2d 648 (5th Cir. 1935). It is directed that the errors in the computation of interest be corrected.
( b) Appellant also contends the contracts entered into for the purchase of farm equipment from Roberson Tractor Company contained usurious charges under Code Ann. §§ 96-903, 57-101 and 57-116. He reaches this conclusion by applying the allowable interest rates authorized by these Code sections to show that in each instance the finance charges exceeded the allowable interest. He concedes in his brief it is lawful and not usurious to charge one price for property for cash and a higher price for the same property sold on credit, however, he distinguishes those contracts from the contracts, sub judice, on the basis of the "disclosure made in the face of the contracts." He argues these contracts are for the sale of property at a cash valuation and usurious, alleging certain payments are deferred in consideration that a greater rate of interest than that allowed by law is to be paid by the purchaser, citing Bird v. Benton & Bros., 127 Ga. 371, 56 S.E. 450 (1906) and Jackson v. Commercial Credit Corp., 90 Ga.App. 352, 83 S.E.2d 76 (1954). Those cases are inapposite. Further, in Bird, supra, the defendant offered evidence concerning details of the transaction resulting in the execution of the contract. Here, appellant offered no evidence to support his claim of usury. After a careful review of these contracts and of the case law on the subject, we conclude these contracts contemplated a credit sale rather than a cash sale, and the question of usury is not involved. E. Tris Napier Co. v. Trawick, 164 Ga. 781, 782, 139 S.E. 552 (1927); Richardson v. C. I. T. Corp., 60 Ga.App. 780, 789, 5 S.E.2d 250 (1939).
3. We also conclude that there is no merit to appellant's contention that the notes involved here in Case # 34724 were consumer transactions. 3 The evidence before the court in both cases, corroborated by Sumner's testimony before a jury upon cross-examination by Adel Banking Company's attorney, is conclusive that the loans from the bank and the farm equipment purchased from Roberson Tractor Company were obtained to conduct appellant's farming operations. This use is for the "conduct of a business" as defined in Code Ann. § 67-718(a).
4. It was also not error for the trial court to refuse to direct a verdict at the close of plaintiff's evidence in Case # 34724 as to Counts 1 and 2 of the complaint. In Count 1, the bank alleged the existence of the notes, the security interests, the default in payment and the balances owed. This count was amply supported by the evidence presented to the jury. Count 2 alleged the need for the writ of immediate possession. The information in this count served as the basis for the trial court's issuance of the writ under Code Ann. §§ 67-709 67-711. Following levy and storage of the equipment, appellant answered, presented defenses in law and equity and...
To continue reading
Request your trial
-
Payne's Hardware & Bldg. Supply, Inc. v. Apple Valley Trading Co. of West Virginia
...157 W.Va. at 29-30, 198 S.E.2d at 824 (citing Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961)). In Sumner v. Adel Banking Company, 244 Ga. 73, 259 S.E.2d 32 (1979), the Georgia court found no error in the entry of summary judgment for the appellee where the appellant had not filed a ......
-
Rigdon v. Walker Sales & Service, Inc.
...the subject combine was purchased "for the purpose of gathering tobacco," a commercial farming operation. See Sumner v. Adel Banking Co., 244 Ga. 73(3), 259 S.E.2d 32 (1979); see also Pridgen v. Murphy, 44 Ga.App. 147(1), 160 S.E. 701 (1931). Moreover, the subject contract contains a divisi......
-
Chambers v. Sovereign Coal Corp.
...appellant in response to the appellee's affidavits to indicate the nature of such alleged safety violations.4 In Sumner v. Adel Banking Company, 244 Ga. 73, 259 S.E.2d 32 (1979) the Court found no error in the entry of summary judgment for the appellee where the appellant filed no counter-a......
-
Ward v. Hudco Loan Co., 42016
...the appellee argues that the overcharges were the result of clerical error, inadvertence, or a trifling excess. Sumner v. Adel Banking Co., 244 Ga. 73(2a), 259 S.E.2d 32 (1979) and cits.; Williams v. First Bank & Trust Co., 154 Ga.App. 879(4), 269 S.E.2d 923 (1980) and cits. We affirm the t......