Thompson v. Commercial Credit Equipment Corp.

• Citation: 169 Neb. 377,99 N.W.2d 761
• Decision Date: 04 December 1959
• Docket Number: No. 34644,34644
• Parties: Ruth THOMPSON, Administratrix of the Estate of Howard S. Thompson, deceased, Appellee, v. COMMERCIAL CREDIT EQUIPMENT CORPORATION et al., Appellants.
• Court: Supreme Court of Nebraska

Page 761

99 N.W.2d 761

169 Neb. 377

Ruth THOMPSON, Administratrix of the Estate of Howard S. Thompson, deceased, Appellee, v. COMMERCIAL CREDIT EQUIPMENT CORPORATION et al., Appellants.

No. 34644.

Supreme Court of Nebraska.

Dec. 4, 1959.

Syllabus by the Court.

1. An implement dealer may, in good faith, sell far machinery on time for a price in excess of the cash price without tainting the transaction with usury, though the difference in prices may exceed lawful interest for a loan.

2. In order to have the foregoing principle apply it must appear that the buyer actually was informed of and had the opportunity to choose between a time sale price and a cash sale price.

3. Every inhibitory provision contained in the Installment Loan Act, sections 45-114 to 45-158, R.R.S.1943, as amended, apply alike to licensees and nonlicensees.

4. The Legislature during a session may do and undo, consider and reconsider, as often as it thinks proper, as only the final result will be regarded as the thing done.

5. A legislative act which is amendatory of existing laws is unconstitutional where such act does not contain the section or sections amended and does not repeal said original sections.

6. However, an independent legislative act covering the entire subject of legislation to which it relates may incidentally modify or change existing statutes without referring to them.

7. An act not complete in itself, but which is clearly amendatory in its character and scope, must set forth the section or sections as amended, and repeal the original section or sections.

8. Where a general statute, if standing alone, would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute, whether it was passed before or after such general enactment. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication.

9. Any provision in a legislative bill which is not clearly expressed in the title cannot be enacted into law.

10. Where the title to an act is one for the amendment of an existing statute or section thereof, any legislation may be included in the amendatory act which is germane to the subject of the statute or section thereof sought to be amended.

11. However, the Legislature may make the title to an act as restrictive as it pleases. If it does so the courts cannot enlarge the scope thereof and the Legislature, by so doing, limits itself accordingly.

Wright, Simmons & Harris, Atkins & Ferguson, Scottsbluff, for appellants.

R. L. Gilbert, Morrill, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an appeal from the district court for Scotts Bluff County. It involves an action brought in that court by Howard S. Thompson against Commercial Credit Equipment Corporation and Brubaker-Sommers Company to have declared void a certain obligation executed by plaintiff to defendant Brubaker-Sommers Company in the form of a 'Purchase Agreement' and assigned by it to defendant Commercial Credit Equipment Corporation. The basis for the action is the claim that the obligation owing under the 'Purchase Agreement,' which is payable in installments, was in fact a loan and, as such, within the provisions of the Nebraska Installment Loan Act; and because the amount charged as interest for the use thereof is in violation of the inhibitory provisions of the act, the obligation is void.

The trial court so found and held accordingly, finding it was a loan and that the interest charged therefor was in excess of that authorized by section 45-138, R.S.Supp., 1957, and because thereof, held it was void and unenforcible. It also held that section 45-155, R.S.Supp., 1957, the provisions of which the defendants sought to have applied if the trial court should find the indebtedness to be an installment loan, was unconstitutional, the trial court also enjoined the defendants from repossessing the equipment described in the 'Purchase Agreement,' dismissed Commercial Credit Equipment Corporation's cross-petition whereby it sought to do so, and enjoined the defendants from in any manner attempting to enforce or collect the indebtedness. Defendants filed separate motions for new trial and have perfected this appeal from the overruling thereof.

After judgment had been rendered by the trial court the death of the plaintiff Howard S. Thompson was called to that court's attention. The action was thereupon revived in the name of Ruth Thompson as the administratrix of decedent's estate.

Appellants contend the trial court erred in finding that the 'Purchase Agreement' was in fact a loan; in holding that the purchase agreement was void and unenforcible by reason of certain provisions in section 45-138, R.S.Supp., 1957; in holding section 45-155, R.S.Supp., 1957, to be unconstitutional; and in enjoining the appellants from enforcing the collection of the purchase agreement.

Appellant Brubaker-Sommers Company is a partnership consisting of B. C. Brubaker and Edward D. Sommers. It engages in the sale of farm machinery with its place of business located in Scottsbluff, Nebraska. Commercial Credit Equipment Corporation engages in financing Ford products, including those purchased by the appellant Brubaker-Sommers Company from that manufacturer. Howard S. Thompson was a farmer living in the vicinity of Morrill, Nebraska, when the transaction herein involved was entered into. We shall hereinafter refer to Edward D. Sommers as Sommers; to Howard S. Thompson, deceased, as Thompson; to Brubaker-Sommers Company as the partnership; and to Commercial Credit Equipment Corporation as Commercial. It appears Commercial was the successor of Dearborn Motors Credit Corporation.

The obligation evidenced by the 'Purchase Agreement' executed by Thompson arose out of a deal whereby Thompson purchased from Brubaker-Sommers Company a new Ford tractor and Ford cornpicker, negotiations for the purchase of which were carried on by Thompson entirely with Sommers. Both of these men testified at the trial and there is conflict in their testimony as it relates to material matters concerning the agreement itself. In this situation the following principle has application: 'Suits in equity, on appeal to this court, are triable de novo, subject to the rule that when evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than another.' Wilkie v. Banse, 166 Neb. 138, 88 N.W.2d 181, 182. We might add that there are circumstances disclosed by the evidence, as they relate to parts of Sommers' testimony, that seriously affect its weight.

In view of the foregoing we find the evidence adduced establishes the following: That in September of 1957 Thompson was wanting to buy a new tractor and cornpicker, shopping around for that purpose; that, among others, he contacted the partnership through Sommers; that he told Sommers of his desire, advising him that he had a used tractor, cornpicker, cultivator, and plow that he wished to trade in on any deal he made; that thereafter, in the latter part of September, Sommers came out to Thompson's farm to see those items; that on October 1, 1957, Sommers advised Thompson that he would make the following deal, that is, that the partnership would sell him a new Ford tractor and cornpicker for $5,093 and take in trade his used tractor, cornpicker, cultivator, and plow for $1,593, thus leaving a balance owing on the purchase price of $3,500; that Thompson accepted this offer, having advised Sommers that he would have to finance the balance; that Sommers then advised Thompson that the balance could be financed through Dearborn in Kansas City but that there would be some difference added in the form of finance charges; that on October 1, 1957, Sommers prepared an 'Invoice' setting forth the terms of this agreement, showing 'Terms: DMCC,' meaning Dearborn Motors Credit Corporation, a copy of which Sommers handed to Thompson; that some 3 or 4 days after October 1, 1957, Sommers came out to the Thompson farm and got the trade-ins; that some 6 or 7 days thereafter Thompson first saw and then signed the 'Purchase Agreement,' dated October 1, 1957, showing a balance owing of $4,275 payable at the rate of $1,425 on April 1, 1958, April 1, 1959, and April 1, 1960, respectively receiving a copy thereof; and that some time thereafter, toward the end of October, the new Ford tractor and cornpicker were delivered to Thompson.

It will be observed that finance charges in the sum of $775 were added to the balance of $3,500 owing on the cash sale. This is far in excess of what is authorized by section 45-138, R.S.Supp., 1957, which, in this respect, provides: 'No licensee shall directly or indirectly charge, contract for, or receive a greater rate of interest than nine per cent per annum upon any loan, or upon any part or all of any aggregate indebtedness of the same person, in excess of three thousand dollars.'

The 'Purchase Agreement' was assigned to Commercial and, on October 31, 1957, the partnership received from Commercial the sum of $3,393 with the understanding that when the obligation had been paid in full it would receive an additional sum of $105 and credit in a reserve fund of $97.05. It is apparent that the partnership was an agent of Commercial in making the loan to finance the balance of the purchase price.

'An automobile dealer may in good faith sell a car on time for a price in excess of the cash price without tainting the transaction with usury, though the difference in...