The opinion of the Court was delivered by
Mr. Justice Carter.
This action by the plaintiff, American Fertilizing Company, against the defendant, J. O. Brigman, commenced in the Court of Common Pleas for Marion County, is a suit on a promissory note, alleged to have been executed by the defendant payable to the order of the plaintiff in the sum of $1,175.04, dated March 15, 1926, due September 15, 1926, bearing interest from April 10, 1926, at the -rate of 8 per cent, per annum, and containing the usual provision for the payment of attorney’s fees. The case came on for trial in said Court (the date not appearing in the transcript of record) before his Plonor, Judge W. H. Grimball, and a jury. At the close of the plaintiff’s testimony the defendant made a. motion for direction of a verdict, which motion, after due consideration by the Court, was refused. Following the refusal of defendant’s motion for direction of a verdict, by
permission of the Court, the defendant introduced testimony, and the plaintiff introduced testimony in reply. At the close of all the testimony the defendant renewed his motion for direction of a verdict, and the plaintiff also moved for a directed verdict. The Court refused defendant’s motion, but granted the plaintiff’s motion, directing a verdict against the defendant for the full amount. From the entry of judgment on the verdict directed, the defendant has appealed to this Court, asking a reversal of the judgment upon the grounds set forth in his exceptions.
The alleged errors imputed to the presiding Judge are presented under four exceptions, but, as stated by the appellant, the exceptions raise but two questions, namely:
(1) Did the presiding Judge err in refusing to direct a verdict for the defendant ?
(2) Did the presiding Judge err in directing a verdict for the plaintiff ?
No question is raised on account of the case having not been submitted to the jury, and it seems to be conceded by counsel for the litigants, that the issues were properly determinable by the Judge, and that it was his duty to direct a verdict for one of the parties litigant. The motion of the defendant was based upon the following grounds, quoting the .language of defendant’s counsel:
“Mr. Henry Ellerbe: The defendant moves for a directed verdict upon the ground that the uncontradicted testimony shows that the sale of the fertilizers was made to Mr. Brig-man on a cash basis for the sum of One Thousand Five and 35/100 Dollars and thereafter the plaintiff took a note in excess of the amount which was due them at eight per cent, and it is usurious, and the plaintiff is only entitled to recover the sum of One Thousand Five and 35/100 Dollars. When this obligation became fixed and Brigman became the owner of the fertilizer, and the Fertilizing Company having made demand for this fixed sum of One Thousand and Five and
35/100 Dojlars they could not afterwards change the status so as to collect a usurious amount.”
In support of appellant’s position counsel for appellant cites the following statement of the law from Cyc.:
“Where the sale is made on a cash basis and for a cash price and the vendor forbears to require the cash payment agreed upon in consideration of the vendee’s promising to pay at a future day a sum greater than that agreed cash value with lawful interest, in such case there is a forbearance to collect an existing debt, and the excessive charge therefor is usurious.” 39 Cyc., 927.
“f. Obligation given to pay a larger sum than actually loaned or due. (1) In general. Another device frequently employed to cloak a usurious transaction is to require the borrower to give his obligation bearing legal interest, for a sum in excess of that actually received by him. If the difference between the face of the obligation and the sum actually received or owed by the debtor, when added to the interest stipulated, exceeds the rate of interest permitted by law, the obligation is usurious.” 39 Cyc., 958.
“(Ill) Forbearance in Notes for Deferred Payments. When a certain sum of money has become payable under a contract of sale as a cash price, then the taking of notes therefor payable at a future day is a forbearance and if an additional sum greater than legal interest for the extension period is exacted the contract is usurious.” 39 Cyc., 943.
These principles of law are well recognized, but, under our view, are not applicable to the case at bar. The pertinent facts of the case, briefly stated, are as follows: In January, 1926, the parties entered into a written contract, signed by the defendant'January 16, and two days later signed by the plaintiff. Under this instrument of writing the defendant purchased certain fertilizers from the plaintiff, and agreed to the prices stipulated therein for the fertilizers. The instrument contained a provision to the effect that, in the event the
defendant paid cash for the fertilizer, he would receive a certain discount. There was stamped across the contract the following wording: “This contract approved on S. D. B. L,. basis only,” which meant that the fertilizer was to be shipped with bill of lading attached to draft for the fertilizer, based on the price stipulated in the contract, less the amount of discount stated in the contract for cash. Tater on, pursuant to this contract, the defendant ordered from the plaintiff 40 tons of fertilizer, and shipment was made to the point directed, draft being drawn on the defendant, through his bank, for $1,005.35, which was the net amount due for the fertilizer, according to the price stipulated in the contract, less the discount allowable under the contract for cash payment. When this draft reached the bank, through the regular channels, and was presented-to the defendant for payment, the defendant was not in a position to pay the draft; whereupon the officer of the bank held a ’phone conversation with the plaintiff’s office and procured authority to deliver the bill of lading to the defendant without the payment of the draft. Notwithsanding the testimony of the defendant that he gave no instruction to the bank officer, in view of the fact that the defendant readily accepted the benefit of the result of the action of the bank officer, we hold that the bank officer acted for and in behalf of the defendant when he procured authority to deliver the bill of lading without the payment of the draft. Thereafter the plaintiff prepared and sent to the defendant to be executed by the defendant a note for the cost of the fertilizer according to the price stipulated in the contract, without any allowance for cash. In our opinion, waiving the requirement of the payment of the draft attached to the bill of lading and authorizing the bill of lading delivered to the defendant, and the defendant accepting the same without the payment of the draft, in effect amounted to an agreement between the parties to strike from the contract the statement, “this contract approved on S. D. B. T. basis only.” The note in question was executed by the defendant.
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The opinion of the Court was delivered by
Mr. Justice Carter.
This action by the plaintiff, American Fertilizing Company, against the defendant, J. O. Brigman, commenced in the Court of Common Pleas for Marion County, is a suit on a promissory note, alleged to have been executed by the defendant payable to the order of the plaintiff in the sum of $1,175.04, dated March 15, 1926, due September 15, 1926, bearing interest from April 10, 1926, at the -rate of 8 per cent, per annum, and containing the usual provision for the payment of attorney’s fees. The case came on for trial in said Court (the date not appearing in the transcript of record) before his Plonor, Judge W. H. Grimball, and a jury. At the close of the plaintiff’s testimony the defendant made a. motion for direction of a verdict, which motion, after due consideration by the Court, was refused. Following the refusal of defendant’s motion for direction of a verdict, by
permission of the Court, the defendant introduced testimony, and the plaintiff introduced testimony in reply. At the close of all the testimony the defendant renewed his motion for direction of a verdict, and the plaintiff also moved for a directed verdict. The Court refused defendant’s motion, but granted the plaintiff’s motion, directing a verdict against the defendant for the full amount. From the entry of judgment on the verdict directed, the defendant has appealed to this Court, asking a reversal of the judgment upon the grounds set forth in his exceptions.
The alleged errors imputed to the presiding Judge are presented under four exceptions, but, as stated by the appellant, the exceptions raise but two questions, namely:
(1) Did the presiding Judge err in refusing to direct a verdict for the defendant ?
(2) Did the presiding Judge err in directing a verdict for the plaintiff ?
No question is raised on account of the case having not been submitted to the jury, and it seems to be conceded by counsel for the litigants, that the issues were properly determinable by the Judge, and that it was his duty to direct a verdict for one of the parties litigant. The motion of the defendant was based upon the following grounds, quoting the .language of defendant’s counsel:
“Mr. Henry Ellerbe: The defendant moves for a directed verdict upon the ground that the uncontradicted testimony shows that the sale of the fertilizers was made to Mr. Brig-man on a cash basis for the sum of One Thousand Five and 35/100 Dollars and thereafter the plaintiff took a note in excess of the amount which was due them at eight per cent, and it is usurious, and the plaintiff is only entitled to recover the sum of One Thousand Five and 35/100 Dollars. When this obligation became fixed and Brigman became the owner of the fertilizer, and the Fertilizing Company having made demand for this fixed sum of One Thousand and Five and
35/100 Dojlars they could not afterwards change the status so as to collect a usurious amount.”
In support of appellant’s position counsel for appellant cites the following statement of the law from Cyc.:
“Where the sale is made on a cash basis and for a cash price and the vendor forbears to require the cash payment agreed upon in consideration of the vendee’s promising to pay at a future day a sum greater than that agreed cash value with lawful interest, in such case there is a forbearance to collect an existing debt, and the excessive charge therefor is usurious.” 39 Cyc., 927.
“f. Obligation given to pay a larger sum than actually loaned or due. (1) In general. Another device frequently employed to cloak a usurious transaction is to require the borrower to give his obligation bearing legal interest, for a sum in excess of that actually received by him. If the difference between the face of the obligation and the sum actually received or owed by the debtor, when added to the interest stipulated, exceeds the rate of interest permitted by law, the obligation is usurious.” 39 Cyc., 958.
“(Ill) Forbearance in Notes for Deferred Payments. When a certain sum of money has become payable under a contract of sale as a cash price, then the taking of notes therefor payable at a future day is a forbearance and if an additional sum greater than legal interest for the extension period is exacted the contract is usurious.” 39 Cyc., 943.
These principles of law are well recognized, but, under our view, are not applicable to the case at bar. The pertinent facts of the case, briefly stated, are as follows: In January, 1926, the parties entered into a written contract, signed by the defendant'January 16, and two days later signed by the plaintiff. Under this instrument of writing the defendant purchased certain fertilizers from the plaintiff, and agreed to the prices stipulated therein for the fertilizers. The instrument contained a provision to the effect that, in the event the
defendant paid cash for the fertilizer, he would receive a certain discount. There was stamped across the contract the following wording: “This contract approved on S. D. B. L,. basis only,” which meant that the fertilizer was to be shipped with bill of lading attached to draft for the fertilizer, based on the price stipulated in the contract, less the amount of discount stated in the contract for cash. Tater on, pursuant to this contract, the defendant ordered from the plaintiff 40 tons of fertilizer, and shipment was made to the point directed, draft being drawn on the defendant, through his bank, for $1,005.35, which was the net amount due for the fertilizer, according to the price stipulated in the contract, less the discount allowable under the contract for cash payment. When this draft reached the bank, through the regular channels, and was presented-to the defendant for payment, the defendant was not in a position to pay the draft; whereupon the officer of the bank held a ’phone conversation with the plaintiff’s office and procured authority to deliver the bill of lading to the defendant without the payment of the draft. Notwithsanding the testimony of the defendant that he gave no instruction to the bank officer, in view of the fact that the defendant readily accepted the benefit of the result of the action of the bank officer, we hold that the bank officer acted for and in behalf of the defendant when he procured authority to deliver the bill of lading without the payment of the draft. Thereafter the plaintiff prepared and sent to the defendant to be executed by the defendant a note for the cost of the fertilizer according to the price stipulated in the contract, without any allowance for cash. In our opinion, waiving the requirement of the payment of the draft attached to the bill of lading and authorizing the bill of lading delivered to the defendant, and the defendant accepting the same without the payment of the draft, in effect amounted to an agreement between the parties to strike from the contract the statement, “this contract approved on S. D. B. T. basis only.” The note in question was executed by the defendant.
As we view the case, we cannot agree with the contention of the appellant that the fertilizer was sold for cash price of $1,005.35, and that the only consideration of the note in question, the $1,175.04 note, was the forbearance of the plaintiff to collect an existing debt. When the contract was modified in the particular
to
which we have called attention, the other provisions of the same-remained in full force and effect, and, when the defendant received the fertilizer under the conditions above set forth, he was under obligations to execute the note in question, embodying the cost of the fertilizer based on the price stipulated in the contract. The fact that at the time the note was executed by the defendant the plaintiff’s representative gave to defendant a statement in writing that, if the note was paid by a certain date, March 29th, he would be allowed the same discount stipulated for the payment of cash, could not affect the case, for the defendant made no offer to settle by that date. The testimony of the defendant as to additional promises on the part of plaintiff’s representative at the time the contract and above-mentioned statement were signed cannot be considered, for the reason that it tends to contradict the written instrument.
In our opinion, the presiding Judge properly refused defendant’s motion for a directed verdict. Furthermore, the plaintiff, having proven the allegations of the complaint, was entitled to a directed verdict, and in our opinion his Honor, Judge Grimball, committed no error in granting plaintiff’s motion.
The exceptions are therefore overruled, and it is the judgment of this Court that the judgment of the Circuit Court be, and the same is hereby affirmed.
Mr. Chief Justice Watts concurs.