Zadek v. Burnett

SOMERVILLE, J. The bill of complaint was filed by the appellees, who are the widow and minor children of one Jim Burnett, and its primary purpose was for an accounting to ascertain the residue of indebtedness, if any, due to the respondent from said Jim Burnett on an account covered and secured by several mortgages on lives stock and other property executed by him to respondent Zadek, who was an advancing merchant, with prayer for redemption, if any balance were due thereon, and for cancellation, if found to have' been satisfied." By amendment, the scope of the bill and prayer for relief were made to include, also, certain mortgages executed by complainant Hattie Burnett, the widow, to said Zadek, and covering the same property embraced in her husband’s mortgages. Demurrers to the amended bill were overruled, and a decree was finally rendered, ordering the register to state an account between the parties, and report same to the court. An account was stated, pursuant to this decree, and the report showed a balance due complainant of $150. The respondent filed a number of exceptions to the report, only two of which were sustained; the result being a final decree in favor of Hattie Burnett for $89. It was decreed, also, m favor of all the complainants that the several mortgages recited in the bill, as amended, had been satisfied in full; and that the register should so mark them. The assignments of error are based on .the overruling of respondents’s demurrers, and certain of his exceptions to the register’s report; and on the decreeing of — 84 — personal relief to Hattie Burnett, to which her co-complainants were not entitled. 1. Complainants, being all jointly interested in the property covered by the mortgages, are proper co-complainants in a bill for accounting and redemption or cancellation. And whether the property in question was subject to administration or not, as widow and heirs at law of Jim Burnett, their interest is sufficient to entitle them to prosecute such a suit. It is clear, also, that their community of interest in the mortgaged property refutes the charge of multifariousness in the bill. We think tbe demurrers were without merit, and were properly overruled. 2. It may be conceded that, as a general rule, where several complainants file a bill jointly and make no case for joint relief, the bill should be dismissed.- — Davis v. Williams, 130 Ala. 530, 30 South. 488, 54 L. R. A. 749, 89 Am. St. Rep. 55. On final submission this rule is now qualified by § 3212, Code 1907. However, where on the pleadings and proof all the complainants are'entitled to the main relief prayed for, as in the case before us, the court is not impotent to adjust the rights of individuals, and to grant individual relief also, where such rights grow out of and are inseparably connected with the chief subject-matter of the bill, as to which common relief may be and is granted. This accords with the equitable maxim which requires all the rights of the parties to be settled in one suit, -when the jurisdiction is in proper exercise for one purpose; and we are aware of no authority which denies this view. The decree, finding a balance due from respondent to Hattie Burnett, was not, in this aspect, erroneous. — 85 — 3. The register found that the balance carried forward from the year 1903 included usurious interest, and corrected it by reduction to an 8 per cent, basis. It is insisted that the only evidence relating to this item— the testimony of Abraham — shows that 15 per cent, interest was calculated on the balance, but did not enter into its composition. The record shows question and answer as follows: “Q. You charged them at the rate of 15 per cent, interest, did you not, on the balance brought forward from 1903, and also for merchandise sold him during this year? A. Yes, sir.” It is obvious that, whatever the witness really intended to say, his answer, as here reported, whether considered alone or in connection with the rest of his testimony, is sufficient to warrant the finding of the register. If the answer quoted was a mistake, the trouble lies in the answer itself; and we cannot impute error to the interpretation given to it by the register. But it is urged that the. finding is erroneous, because the bill contains no charge of usury as to this item. Where usurious interest is embodied in a contract for the payment of money, whether the debtor is attacking or defending on that ground, it is well settled that he must distinctly set forth the facts showing the usury, and specify the items thus infected. But this rule has no application where, without any agreement, express or implied, usurious interest is gratuitously added to an account; and especially where, as here, it does not appear that complainants had any knowledge thereof, or made any payments with respect thereto. In such a case the law fixes the rate of interest, and the accounting must conform thereto, though unaided by suggestion from the pleadings. 4. 'Respondent’s account, as stated by him, shows a credit ■ of 2,083 pounds of cotton on October 4, 1904, — 86 — amounting to $196.58, with deductions of $2, $4.58, and $20; the net credit entered being $170. The original transaction is shown in detail by respondent’s receipt to Jim Burnet on that date, showing four bales of cotton, $196.58, less storage, $20, less cash, $4.58; the net credit being footed up as $190. A storage charge of $20 on four bales of cotton is inconceivable, and too patently erroneous, to say the least of it, for serious argument. The register correctly found that the $20 deduction was an error, as plainly shown by the receipt, and correctly credited complainants with $190 on this item. . 5. Independently of any provision in the mortgage, the rule seems to be established that a chattel mortgagee, in lawful possession of the mortgaged property, is entitled upon an accounting to be credited with all reasonable and actual expenses incurred in caring for it. —7 Oyc. 91, and cases cited. This we take to be true, however, only where the mortgagee holds possession as bailee or trustees for the mortgagor, and not where he assumes to hold in his own right and for his own uses. Applying the rule to the present case, we think the respondent, in seizing the property for sale under the power in the mortgage, was entitled to be reimbursed for expenses incurred by him in the care and maintenance of the stock prior to the sale by him; but the burden was upon him to show that the expenses thus charged were reasonable and necessary. It was his duty to sell as expeditiously as he reasonably could, and to limit the time, as well as the rate, of maintenance to the best of his ability. Beyond this, he was not authorized to incumber and burden the right of redemption. The charge made is $40 for stable bills, feed bills, and medical attention for one horse “from the time it was sent to Montgomery to the time it was sold.” No proof was — 87 — offered that such expenses were necessarily incurred, nor that the charges therefor were reasonable in amount. In this state of the evidence, the register cannot be put in error for rejecting the item as a credit in favor of .respondent. 6. “As a general rule, interest is not allowed on running accounts, so long as they remain open and unliquidated, unless there is some statutory provision that permits it, or some contract between the parties, express ■or implied, that interest shall be paid.” — 22 Cyc. 1510. The same authority further says that, “in some cases, however, interest has been allowed upon cash items of an account.” In the cited case of Rensselaer Glass Factory v. Reid, 5 Cow. (N. Y.) 587, 602, upon a review of many early authorities, the conclusion was: “However it may be with respect to money lent, or as to money had and received, or in regard to merchandise sold and ■delivered, or however it may be where advances are madé in pursuance of an express agreement, in which nothing is' said about interest, I think the above authorities will admit of no other conclusion than that it is now a well-established, general rule of law that, where •a person advances money for the use of another, under •an implied authority, he who makes the advance is entitled to interest from the time it was made.” Conceding the propriety of the allowance of interest on cash advances in such cases as the above, we think the nature of the present account permits of no implication that the cash items therein shown were intended to bear interest from the date on which each was furnished. They were usually small in amount, though ranging from $1 to $20, and frequently blended indistinguishably with merchandise charges. They were carried into the general balánce at the end of each year, exactly as were the items of merchandise, and no claim or charge for in — 88 — terest seems to have been made by respondent, except on the annual balances. Moreover, beginning about September 15th of each year, large payments were made on account which were likewise carried into the general balance, thus giving to respondent the benefit of advance payments on an account not due until the succeeding January! We therefore approve the action of the register in not allowing interest on cash items, except as included in the general annual balance, from year to year-. 7. The mortgages contained a provision authorizing the mortgagee to sell the mortgaged property at either public or private sale. At his discretion, therefore, he might sell in either way, being liable to the mortgagor only for an injurious abuse of such discretion. — Brook v. Headen, 13 Ala. 370, 376. He sold the horse at private sale for $60, and credited complainants with that amount. The register, however, found the reasonable value of the horse to be $125, and entered a credit for that amount, instead of $60. With respect to such sales, we approve the following rule of responsibility: “The creditor will be held, at his peril, to deal fairly and justly with the property, both as to the time of the notice and the manner of the sale. Although it appears that he took pains to secure the best price practicable for the goods, and that they were sold for their value, and that the mortgagor assented to the prices obtained, yet, if he can prove that they were sold unfairly, or at an under price, he will be permitted to do so, and will be allowed their full value.” — Jones on Chat. Mort. (5th Ed.) § 708. So it has been already declared by this court: “Although the mortgagee, by the terms of the mortgage, was authorized to sell the personal property embraced in the mortgage at private sale, this did not relieve him, in taking possession .of and selling the property, from — 89 — the duty of acting in the utmost good faith in selling the same. In selling the property at private sale for the satisfaction of his mortgage debt, it was his duty to sell it at a fair and reasonable valuation, and failing to do so he became liable to the mortgagor for such failure.” Per Dowdell, J., in Johnson v. Selden, 140 Ala. 418, 37 South. 249, 103 Am. St. Rep. 49. The effect of the authorities is to hold a mortgagee who sells at private sale responsible and accountable for at least the fair and reasonable value of the property, regardless of the price actually received by him. The rule is, of course, less rigid tvhere the sale is at public outcry. We have examined the testimony upon which the register’s finding is based, and, as an original proposition, unfettered by the force of that finding, we would be inclined to hold that $60 was a fair and reasonable value for the horse. But upon disputed issues of fact the register’s finding comes to us with the force and conclusiveness of a jury’s verdict, and we do not feel justified in the present case, in view of the conflicting testimony before him, in setting aside his conclusion and substituting our own in its stead. It results that the chancellor did not err in overruling the exceptions to the register’s report, and the decree of the city court will be affirmed. Affirmed. All the Justices concur, except Dowdell, C. J., and Sayre, J., not sitting.