Blake Bros. v. Askew & Brummett

Hart, J., (-after stating the facts). It is insisted by counsel for appellants that the decree should be reversed because appellees did not make and deliver to appellants a verified statement of their account before the foreclosure proceedings were instituted. Section 5415, of Kirby’s Digest, provides that before any mortgagee shall proceed to foreclose, any mortgage or deed of trust of personal property, such mortgagee shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit, and credit, and the balance due. This section, by its terms, applies only to mortgages of personal property; and, the mortgage or deed of trust in question being on real estate, the section has no application. Counsel for appellants also insist that appellees had no right to foreclose the mortgage for the nonpayment of the debt of Boswell. They contend that, because appellees have not yet paid Boswell, they had no right to foreclose the mortgage to obtain satisfaction of the debt. They also object that Boswell signed the $2,600 note which they gave to Askew & Brummett. The evidence of appellees shows that Boswell released the Blakes from all liability on his debt at the time the mortgage, or deed of trust in question was executed, and the Blakes admit this fact. It is true there was an agreement between Askew & Brummett and Boswell that the latter should not be paid out of any of the proceeds of the mortgage foreclosure until the other indebtedness had been first paid; but the Blakes were not parties to this agreement, and had no interest or concern in it. They had been released from all liability to Boswell, and it could make no difference whatever to them that Boswell was not paid at the time. Whatever agreement was made between him and Askew & Brummett as to the time hg should be paid by them did not in any way concern the Blakes; neither were they injured by the fact that Boswell also signed the $2,600 note. In the first place, it may be said that the $2,600 note was executed for convenience sake, and that it was understood that the real indebtedness owed by the Blakes to Askew & Brummett was the amount which the former owed to Barr, Boswell, and Mrs. Brummett, and the goods thereafter to be furnished them by Askew & Brummett. Appellants were not in any way injured by Boswell signing the $2,600 note, and the decree should not be reversed on that ground. It is true it does not appear exactly why Boswell signed the note, but the presumption is that he signed it in order to show that Askew & Brummett should not pay him until they had first obtained satisfaction for the remaining amount due them by appellants. It is also contended by counsel for appellants that the judgment should be reversed because the debt to Mrs. Brummett was usurious. Appellants admit that Mrs. Brummett advanced to them the money,which Askew & Brummett assumed to pay her. They also admit that Mrs. Brummett released them from all liability when Askew & Brummett assumed to pay their indebtedness to her. Therefore, appellees were not affected by usury in the contract between Mrs. Brummett and the appellants. Conceding that the debt was tainted with usury, appellants elected to pay it, and procured its payment by appellees, or, what amounts to the same thing, made a contract with them whereby they assumed to pay Mrs. Brummett for them, and by this agreement procured Mrs. Brummett to release them from any obligation on account of the indebtedness. See Lowe v. Walker, 77 Ark. 103. Appellants also testify that they paid Askew & Brummett for goods which they purchased from them, a greater amount than 10 per cent added.to the cash price of the goods. Askew & Brummett were retail dealers in merchandise, and sold goods mainly on a credit. It was the intention of the parties at the time the mortgage was executed that Askew & Brummett should furnish them with supplies, and that the goods should be sold on a credit. Askew & Brummett had a right to sell goods on a credit for a higher price than they would have sold them for cash. It is true that they sold them to appellants at a profit greater than 10 per cent over the price they were usually sold for cash, but there is nothing to show that this was done to evade the usury law. On the contrary, the evidence shows that it was done in good faith, for the purpose of making a profit on the goods sold. Appellees testified that they sold the goods to appellants at the usual price they sold goods to their customers generally on a credit, and this statement is not denied by appellants. Therefore, there was no usury in this transaction. Briggs v. Steele, 91 Ark. 458. It appears from the record that the decree of foreclosure was made for the amount of money that appellants actually owed to appellees Askew & Brummett, and for the amounts which the latter had assumed to pay for them. The court rendered a decree of foreclosure for the amount of money which Askew & Brummett had assumed to pay for appellants to Barr, to Mrs. Brummett, and to Boswell. All these amounts, under the original contract, were due at the time the mortgage was executed, and bore interest at the rate of 10 per cent.' No interest was charged on the goods sold by Askew & Brummett to appellants until after the accounts became due in the fall. We are of the opinion that the decree of foreclosure was for the amounts actually due by appellants to appellees Askew & Brummett for goods sold by them to appellants and for the debts assumed by them for appellants. Appellees have taken a cross appeal in the case. After the original complaint was filed, an amendment was made to it by which Boswell and Mrs.,Brummett became parties plaintiff. It is insisted by counsel for appellees that Boswéll should have a personal judgment against appellants for the amount of his debt. We do not agree with them in this contention. The undisputed evidence shows that at the time of the execution of the deed of trust, Boswell released appellants from all liability on his debt and looked alone to Askew & Brummett and to the security they had taken for the payment of his debt. Again it is contended by counsel for appellees that Askew & Brummett should have a personal judgment against appellants for the amount of the Boswell debt. We do not think they are right in this contention. We have not set out in full all the testimony relating to the agreement between Askew & Brummett and Boswell as to the payment of his debt, but, after a careful consideration of the record, we think that it was agreed between these parties that they should look alone to the security for the satisfaction of this debt, and that Boswell should be paid by Askew & Brummett only such amount as they should realize under a sale of foreclosure after their other indebtedness had been satisfied. In other words, it was agreed between them that, in the event it was necessary to foreclose the mortgage, Askew & Brummett should be first paid out of the proceeds of tbe other indebtedness secured by the mortgage, and that the remainder should be applied to the satisfaction of the Boswell debt. This agreement contemplated that Askew & Brummett should only pay them what they realized out of the proceeds of the sale of the mortgaged property after the other indebtedness was paid or satisfied. Therefore, we think the chancellor was correct in refusing to give Askew & Brummett a personal judgment against appellant for the Boswell debt. We think the decree on the whole case was correct, and it will be affirmed.