Willis v. Buchman

• Decision Date: 30 April 1940
• Docket Number: 3 Div. 829.
• Parties: WILLIS v. BUCHMAN.
• Court: Alabama Court of Appeals

199 So. 886

30 Ala.App. 33

WILLIS v. BUCHMAN.

3 Div. 829.

Court of Appeals of Alabama

April 30, 1940

Rehearing Denied June 4, 1940.

Appeal Dismissed on Mandate Feb. 4, 1941.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.

Action on promissory note by V. L. Buchman, doing business as Alabama Loan Company, against W. B. Willis. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

Certiorari granted by Supreme Court in Willis v. Buchman, 3 Div. 319, 199 So. 892.

Walter J. Knabe, of Montgomery, for appellant.

Ball &amp Ball and Richard A. Ball, all of Montgomery, for appellee.

J. W Patton, of Montgomery, for Louisville & N. R. Co., amicus curiæ.

RICE Judge.

Appellee's counsel state the situation involved on this appeal as follows, to-wit:

"The plaintiff, appellee here, brought suit against the defendant, W. B. Willis, in the Common Pleas Court of Montgomery County on a promissory note for $21.00. The defense was usury. That court finding no usury in the transaction in connection with which the note was given rendered judgment for the plaintiff.

"The defendant appealed to the Circuit Court where the case was tried by the court without a jury. The defendant again pleaded usury and the Circuit Court trying the case without a jury after hearing the evidence and finding no usury in the transaction rendered judgment for the plaintiff for $21.10.

"The defendant then took this appeal. The plaintiff then faced with the expense of resisting an appeal in which the expense would be out of all proportion to the amount of the judgment cancelled the judgment and discharged it of record and made a motion to dismiss the appeal.

"Notwithstanding the cancellation of the judgment and despite the fact that the defendant now stands free and clear of any claim against him by reason of the note, this appeal is nevertheless being prosecuted in his name. What motive exists for a debtor who has been relieved of his debt to go to further expense in connection with the cancelled debt is not apparent upon the record."

We first consider appellee's motion to dismiss the appeal.

Of course it will be observed that we have quoted his counsel's statement of the facts. This was for two reasons: (1) Because the facts as they state them are correct; and (2) in order that we may dilate, somewhat, upon their obvious conclusions, as contained in said "statement."

Alabama Loan Company is a trade name under which V. L. Buchman of Memphis, Tennessee, operates a loan office at Montgomery, Alabama, which has been operating since about 1928. Formerly it was operated as a straightout money lending business, charging a borrower $6.60 for a loan of $15, payable in weekly installments over a three months period.

About four years before this trial Mr. Buchman set up a merchandise coupon device, by which those who come to borrow money are required to purchase a coupon. The coupon "is good for 10% of the purchase price of merchandise sold by A. J. Kaufman and Son, Montgomery, Alabama;" or will be accepted "as cash equal to 25%" of the purchase price of merchandise, of which the "Merchants' Coupon Service Company, 275 Broadway, New York City" is the distributor. The coupons provide that they "are acceptable only when mailed to the office of Merchants' Coupon Service Company, or through the above agent."

Among the articles listed as handled by the Merchants' Coupon Service Company are: "Binoculars," "Book Ends," "Brooches," "Cameras," "Cigarette Cases," "Clocks," "Coffee Percolators," "Crystal Jewelry," "Cutlery," "Desk Sets," "Diamonds," "Dolls," "Electric Lamps," "Emblems," "Field Glasses," "Fountain Pens," "Fraternity Jewelry," "Home Electric Appliances," "Laundry Irons," "Leather Novelties," "Luggage," "Medals," "Movie Cameras," "Movie Projectors," "Musical Novelties," "Pearls," "Perfumery," "Pewterware," "Prize Cups," "Rosaries," "Silverware," "Silver Novelties," "Smoker Sets," "Tires," "Toasters," "Toiletware," "Trophies," "Travelling Bags," "Umbrellas," "Vacuum Bottles," "Vacuum Cleaners," "Vanity Cases," "Waffle Irons" and "Watches."

Mr. Buchman advertises to lend money but does not advertise to sell merchandise.

The borrower in this case, Willis, appellant, went to the Alabama Loan Company on Dec. 14 to borrow $15. He was required, in order to secure the $15, to sign a note for $21 at the legal rate of interest, payable at the rate of $1.75 per week, in twelve weekly payments. He was also required to sign a receipt in which he stated that he had purchased from E. V. Rush (Alabama Loan Company's agent in full charge of its Montgomery office), as agent for the Merchants' Coupon Service Company, a coupon of a value equal to $7.20, for the price of $6.

Willis testified that he had not asked for a coupon and that he told E. V. Rush when he started to make out the coupon that "he could keep it because he could not use the coupon but merely wanted the $15.00." Rush testified in reference to this particular of the transaction that he didn't remember that Mr. Willis told him he didn't want the coupon; or, if Willis did tell him, he didn't hear it.

Rush testified that the Merchants' Coupon Service Company was headed by a man named Shaffer in New York but that he did not know whether it was a company or a corporation; that Mr. Buchman made connection with the Merchants' Coupon Service Company as far as he knew; that he handled the coupons and made loans all as part of his work for V. L. Buchman in that there was no other agent in Montgomery for the Merchants' Coupon Service Company except himself, and that he received no independent compensation but was paid by Buchman; that he had not been to New York since his connection with the Merchants' Coupon Service Company and did not know whether they had an office at 275 Broadway or merely a place to receive mail; that he did not know whether the company was Mr. Buchman's business or not.

It was then admitted in open court that Mr. Rush did not know the "workings of the Merchants' Coupon Service Company whatever."

Willis testified that he had borrowed from this appellee on four or five prior occasions and that each time he had gotten a coupon except the first time, but that he had never asked for any coupon, and that he, on each occasion, went to the Alabama Loan Company to borrow money and not to buy coupons. And that he had never used any of the coupons.

Rush testified that "possibly seven or eight hundred or maybe more" coupons were issued each month; that he kept two large catalogues in his office with merchandise advertised in them and that customers could use them at any time during the day; that some days the catalogues were used and some days were not; that he wouldn't say half the borrowers used them but would say 25% used them; that they distributed folders advertising merchandise and had from five to ten thousand of them.

A copy of one of these folders is set out in the transcript; and we note it emblazons to the world that one may "Trade at Stores that use Merchants' Coupon Service and save from 25% to 50% from Retail Prices;" which, from the testimony in the case seems to be untrue--even granting that the borrower was financially able to avail himself of the use of the coupon.

Rush testified that he did not know how many of the coupons were actually used.

In reference to the number of coupons which were used at the store of A. J. Kaufman and Son, which was the only other place they could be used except at the Merchants' Coupon Service Company in New York, Mr. A. J. Kaufman of that firm testified that they had had the connection for two or three years but that they never took in any coupons that he knew of. He stated that one or two had come in with coupons and the clerks in the store had asked him what the coupons meant. That in each case the person presenting the coupon thought they could get merchandise for the coupon, but when they found out that they could only get a discount, they refused to buy. As Mr. Kaufman phrased it: "They thought they could exchange it the same as money."

Mr. Kaufman also testified that as far as his company was concerned it was merely an advertising proposition and that the Alabama Loan Company did not pay them anything.

Mr. Rush testified--and we believe none of the testimony in the case was disputed--that in their loans there was no service charge whatsoever; that the amount of the coupon was required to be varied in accordance with the length of time for which he made the loan; and that he did not know whether Mr. Buchman paid anything to the Merchants' Coupon Service Company for the coupons.

We believe it is the law in this State that "as appellate courts do not sit to give opinions on moot questions or abstract propositions, the appeal or writ of error will be dismissed where no actual controversy exists between the parties at the time of the hearing, unless the question involved is a matter of public interest." (Italics ours.) 4 C.J.S., Appeal and Error, § 1354.

And, further: "Since motions to appeals must be considered from the point of view that the law favors appeals, and that a hearing or review on the merits is favored over dismissal or other disposition, motions to dismiss are not looked upon with favor, and in a doubtful case the appeal will be maintained." 4 C.J.S., Appeal and Error, § 1377a.

Under the law as we have quoted it in the two last preceding paragraphs--and it is contrary to no holding by our Supreme Court that has been cited to us, or that we have found--we think, and hold, the motion to dismiss the appeal should be denied. It is so ordered.

The question involved here seems to us to be of the gravest public interest.

That view is confirmed by the fact--the ...