Hall Bros. v. Johnson

Smith, J., (after stating the facts). We think the court correctly excluded the gin book as a book of original entries, because the proper foundation for its introduction as such was not laid. It appears that the man who ran the gin entered each day, on a slip of paper, a notation showing the number of bales ginned that day, and that entries were made upon the gin book from these slips of paper; but it appears that these entries were made only in part by the witness, H. (x. Hall, and that another of the Hall brothers kept this gin book. There was no showing that the deposition of the gin man or of H. H. Hall, the brother who kept the book and made the entries, could not be secured to show that these entries were accurately made. A similar question was presented in the case of Chicago Mill & Lumber Co. v. Osceola Land Company, 94 Ark. 189, where it was said: “Appellant contends that the master erred in rejecting and refusing to accept as correct its record of the number of the various kinds of logs removed from the land by it, and the number of feet therein, which was offered as evidence. He committed no error in so doing. It was not competent, because the foundation for its introduction was not suffioient. It was not shown by whom the record was made or kept, and that it was made at or near the time the timber was cnt, and in the regular course of business, and that the party who made it can not be produced as a witness to testify as to its accuracy. Railway Co. v. Henderson, 57 Ark. 402; 1 Greenleaf on Evidence (16 ed.), § 120a; 2 Wigmore on Evidence, § § 1521, 1523, 1525 and 1526.” We think no error was committed in the exclusion of the cash items as usurious. Appellant does not undertake to prove the indebtedness due it by the exhibition of the notes described in the deed of trust. In fact, they were given in anticipation of future advances. There is reason to believe the notes themselves would have been found usurious. But appellant sues upon the account, and it appears from the face of the account, as well as from H. Gr. Hall’s own admission, that interest was charged at a higher rate than 10 per cent per annum, and all of such items are of course void. Kirby’s Digest, § § 5389-5391; Garvin v. Lenten, 62 Ark. 376. We think the chancellor was correct in directing that'interest be computed upon the balance found due at the rate of 6 per cent per annum, and hot at the rate of 10 per cent per annum, as prescribed in the notes. The deed of trust provided that it should secure all advances made during the years in which the advances were made; but it contained no provisions that interest should be charged on these advances at the rate of 10 per cent, and that rate can not therefore be charged. Appellee says upon his cross appeal that appellant has not properly proven its account, and that judgment has been given for an excessive sum; but upon consideration of all the evidence, we think the chancellor’s finding on that question is not contrary to the preponderance of the evidence. The temporary restraining order against the foreclosure of the deed of trust describing the personal property was dissolved. The deed of trust, describing the lands, was reformed, and the clerk of the court appointed commissioner with, directions to sell the lands, if the indebtedness found due was not paid in the time limited. This order appears to have been properly made and the decree is in all things affirmed.