Crisco v. Murdock Acceptance Corp.

258 S.W.2d 551, 222 Ark. 127, 1953 Ark. LEXIS 733

• Court: Supreme Court of Arkansas
• Decided: May 11, 1953
• Docket: 5-71
• Status: Published

Opinions

Robinson, Justice.

Appellant Crisco bought an automobile on a conditional sales contract from James Hampton, d/b/a Public Auto Company. Hampton assigned the contract without recourse to Murdock Acceptance Corporation; later Crisco filed suit in the Pulaski Chancery Court to cancel the instrument on the ground that a usurious rate of interest had been charged. There was a decree in favor of Hampton and the finance company. However, Crisco was allowed a credit for an overcharge of $45. Crisco has appealed maintaining that the contract is usurious and therefore void, and the finance company has cross-appealed, contending that the Court erred in giving the $45 credit.

According to the evidence, Crisco saw the automobile advertised in a newspaper for the sale price of $1,475. He went to look at the car, and it had a sales tag attached for that amount. He was also told by the salesman the price was $1,475 and no other sales price was mentioned. Upon making the purchase, he was furnished an invoice signed by Homer Jones, Hampton’s agent, which described the car and stated the cash price of $1,475, a time price differential of $326, and a total time price of $1,801. Crisco also signed the invoice. The transaction took place on Saturday, April 5, 1952; and although the contract itself does not show the date of the assignment to Murdock Acceptance Corporation, it must have been done immediately because on Monday, April 7, a policy of insurance covering fire, theft, etc., was issued by the Central National Insurance Company, and Murdock Acceptance Corporation is named in the loss payable clause. The selling price as shown on the insurance policy is $1,425; apparently this was meant for $1,475 as written figures on the invoice can be easily mistaken for $1,425 instead of $1,475; but in any event it certainly was not meant for $1,801.

Over cross-appellant’s objection, Crisco testified that the agreement was that he would receive a credit of $900 on a car he was trading in; however, the invoice and contract show a credit of only $855.

In addition to the policy of insurance covering the automobile, the Credit Life Insurance Company of Springfield, Ohio, issued a policy insuring Crisco’s life in the sum of $1,116 and providing indemnity for loss of time by reason of sickness or accident in the sum of $62 per month. The policy covered a period of 18 months and the premium was $39.06. The premium on the automobile policy was $112, making a total in premiums of $151.06 on the policies issued. The “differential” named in the invoice was $326.

Crisco testified that he owed $170 on the car he was trading in, which according to the terms of the sale was assumed by Hampton. Hence when the $170 is deducted from $855, $685 is left to apply on the purchase price of $1,475. Deducting $685 from $1,475 leaves Crisco owing $790. Adding the $326 “differential” to the $790 makes a total of $1,116. The balance due as stated in the contract is $1,116 payable in 18 installments of $62 each.

All of this proves that Hampton used the $1,475 cash price as a basis upon which to compute the so-called “differential.” The evidence is convincing that Hampton did not have a credit price of $1,801 set up on his automobile. He deducted the down payment from the cash price, and then according to some formula he made a charge for carrying the balance for a period of 18 months; he added the amount determined by the formula he used to the balance owed on the $1,475 after giving credit for the down payment; and this amount totalled $1,116.

The problem of usury is one that has existed as far back as we have any records; about as fast as man has been able to make laws against usury, schemes have been devised to evade those laws. The framers of our Constitution attempted to guard against usury by Art. 19, § 13 of the Constitution which provides as follows: ‘ ‘ All contracts for a greater rate of interest than 10 per cent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law; but when no rate of interest is agreed upon, the rate shall be six per centum per annum.”

Ark. Stat., § 68-602 provides: “The parties to any contract, whether the same be under seal or not, may agree in writing for the payment of interest not exceeding ten (1Ó) per centum per annum on money due or to become due.”

Ark. Stat., § 68-603 provides: “No person or corporation shall, directly or indirectly, take or receive in money, goods, things in action, or any other valuable thing, any greater sum or value for the loan or forbearance of money or goods, things in action, or any other valuable thing, than is in section one (§ 68-602) of this act prescribed.”

Ark. Stat., § 68-609 provides: “Every lien created or arising by mortgage, deed of trust or otherwise, on real or personal property, to secure the payment of a contract for a greater rate of interest than ten (10) per centum per annum, either directly or indirectly, and every conveyance made in furtherance of any such lien is void; and every such lien or conveyance may be can-celled and annulled at the suit of the maker of such usurious contract, or his vendees, assigns or creditors. The maker of a usurious contract may by suit in equity against all parties asserting rights under the same, have such contract and any mortgage, pledge or other lien, or conveyance executed to secure the performance of the same, annulled and cancelled, and any property, real or personal, embraced within the terms of said lien or conveyance, delivered up if in possession of any of the defendants in the action, and if the same be in the possession of the plaintiff, provision shall be made in the decree in the case removing the cloud of such usurious lien, and conveyances made in furtherance thereof, from the title to such property. Any person who may have acquired the title to, or an interest in, or lien upon such property by purchase from the makers of such usurious contract, or by assignment or by sale under judicial process, mortgage or otherwise, either before or after the making of the usurious contract, may bring his suit in equity against the parties to such usurious contract, and any one claiming title to such property by virtue of such usurious contract or, may intervene in any suit brought to enforce such lien, or to obtain possession of such property under any title growing out of such usurious contract, and shall by proper decree have such mortgage, pledge or other lien, or conveyance made in furtherance thereof, cancelled and annulled in so far as the same is in conflict with the rights of the plaintiff in the action.”

Ark. Stat., § 68-611 provides: “Neither the maker of a usurious contract nor his vendees, assigns or creditors, or any other person who may have or claim an interest in any property embraced within the terms of such usurious contract, shall be required to tender or pay any part of the usurious debt or interest as a condition of having such contract, and any conveyance, mortgage, pledge or other lien given to secure its payment or executed in furtherance thereof, enjoined, cancelled and annulled, and any rule of law, equity or practice to the contrary is hereby abrogated.”

In the early case of Ford v. Hancock, 36 Ark. 248, it was said: “Usury is a corrupt agreement for more than the legal rate of interest on a loan of money, or for the forbearance of a debt. It is not usury for one who sells a piece of property on credit, to contract for a higher price than he would have sold it for cash. If the intention be, in fact, to sell on credit, he has the right to fix a price greater than the cash price, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a bona fide credit sale, or a device to cover usury.”

In Standard Motors Finance Co. v. Mitchell Auto Co., 173 Ark. 875, 293 S. W. 1026, 57 A. L. R. 877, it was held that charging a price more than ten per cent greater for an article sold on credit than would have been charged had the sale been for cash, does not constitute usury. Ford v. Hancock is cited with approval but nothing is said about the language in that case, “. . . but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious.”

Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. 2d 1111, also cites Ford v. Hancock with approval, but loses track of the following language from that case: “Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a bona fide credit sale, or a device to cover usury.”

In General Contract Purchase Gorp. v. Holland, 196 Ark. 675, 119 S. W. 2d 535, it is said: “The fact that the difference between the cash price of the LaSalle car purchased by appellee and the credit price amounted to more than 10 per cent per annum on the cash price would not make the note usurious. There is nothing in the law that will prevent a dealer from charging a higher price when he sells his goods on time than he would have charged if the purchase price had been paid in cash. The amount of the increase in price is not limited by the law, but it depends upon the agreement of the parties.” No authority is cited, and the language in Ford v. Hancock to the effect that if the sale be really made on a cash estimate or where the intention is not apparent it is a question for the jury to determine whether it is a bona fide credit sale or a device to cover usury is not mentioned.

In Harper v. Futrell, 204 Ark. 822, 164 S. W. 2d 995, the Court said: “This Court has held that the finance charges in connection with the sale of property under a conditional sales contract are not paid for a loan of money, but are a part of the purchase price which the purchaser agreed to pay, and that there is no usury in a transaction of this kind.” Citing Cheairs v. McDermott Motor Co., supra.

Thus it will be seen that although Ford v. Hancock has been cited with approval all along as authority for a credit price more than 10 per cent greater than a cash price not being usurious, the language in that opinion, . . but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a bona fide credit sale, or a device to cover usury,” has gradually been lost sight of.

In the case of Schuck v. Murdock Acceptance Corp., 220 Ark. 56, 247 S. W. 2d 1, the purchase price of the automobile as shown by the contract appeared to be $2,328; but the loan company who purchased the title-retaining note from the automobile company obtained an insurance policy which showed the actual cost of the automobile when purchased, including equipment, to be $1,795. The loan company paid $1,276.40 for a $1,728 note at the time of purchase, and $24 at a later date. It was found in that case that as a matter of fact $1,795 was the selling price of the. automobile, and there was a trade-in of an old car of $400 and $200 paid in cash, making a down payment of $600, leaving a balance of $1,195; and that on such balance interest was charged at the rate of 15.25%; and that the contract showing a total price of $2,328 was a device to cover usury.

Immediately following- the Schuck case, we had Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. It then appeared that the language in such cases as Cheairs v. McDermott had given the impression that a sale could be figured on a cash estimate and any sum which might be added to the balance after the down payment as “differential” or “carrying charges” or “credit price” would not be construed as usury, even though greatly exceeding 10 per cent. And in the Hare case we said: “In a long line of cases, we have permitted the seller, under one guise or another, to do exactly what was done in the case at bar, and we have permitted the transferee of the paper to recover in just such a situation. Some of such cases are: Garst v. General Contract Purchase Corp., 211 Ark. 526, 201 S. W. 2d 757; Harper v. Futrell, 204 Ark. 822, 164 S. W. 2d 995, 143 A. L. R. 235; General Contract Purchase Corp. v. Holland, 196 Ark. 675, 119 S. W. 2d 535; Cheairs v. McDermott, 175 Ark. 1126, 2 S. W. 2d 1111; Standard v. Mitchell, 173 Ark. 875, 298 S. W. 1026, 57 A. L. R. 877; and Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978.

“In the case at bar, the parties dealt on the strength of the aforesaid holdings, which have become a rule of property, and we must not overrule these cases retroactively. Therefore, insofar as the case at bar is concerned, it must be affirmed on the strength of our pre vious holdings.”

The Hare case then gave a Caveat to the effect that such cases as Cheairs v. McDermott could no longer be relied on as to the amount which could be added as ‘ ‘ differential,” “carrying charges,” or “credit price” to the cash price and not be considered usurious.

We have been urged to recall the Caveat in the Hare case, but decline to do so; however, the case at bar must be affirmed on the usury issue because the contract was made prior to the date the Hare case became final.

Appellant also urges for reversal that the Court erred in overruling a motion for continuance made on the day the case was to be tried. Such motions to a large extent rest within the discretion of the trial court, and the record here is not such that we can say there was an abuse of discretion.

Appellant also contends that the court erred in overruling a motion made on the date of the trial to require the defendant to produce certain records; but appellant could have obtained any records desired by making the motion at an earlier date or by subpoena duces tecum issued prior to the date of trial.

Crisco’s testimony that the agreement was he would receive a $900 credit on the car he traded in instead of $855 as shown on the face of the contract was not admissible. The evidence is not sufficient to show fraud, and ordinarily parol evidence is not admissible to vary the terms of a written contract, Outcault Advertising Co. v. Bradley, 105 Ark. 50, 150 S. W. 148; Firestone Tire & Rubber Co. v. Webb, 207 Ark. 820, 182 S. W. 2d 941; but there is an exception when such testimony is for the purpose of showing a usurious contract, Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516; Prickett v. Williams, 110 Ark. 632, 161 S. W. 1023. However, here the Chancellor’s holding that there was no usury is affirmed; therefore the testimony as to the claimed credit of $900 instead of $855 cannot be considered as it is at variance with the written contract; the trial court therefore erred in allowing the $45 credit.

Affirmed on appeal, reversed on cross-appeal.

Mr. Justice Ward concurs.