Crittenden v. Ragan

42 So. 282, 89 Miss. 185

• Court: Mississippi Supreme Court
• Decided: November 15, 1906
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

We think the bill sufficiently avers usury as to the discount of the notes, and the double charges therefor on the amount advanced Fuller. The trust deed recitals, taken in conjunction with the averments of the bill, show that Crittenden discounted the notes, which were for advances to be made, and placed the amount to the credit of Fuller, and that afterwards, when the advances were made, again charged ten per cent per annum on such advances; and the demurrer admits all this to be true. The other charges about usury and fraud are not sufficiently specific. The appellees’ bill also clearly admits some sum to be due the appellants, and no tender is made of any amount whatever. It is true that the bill and cross-bill av.er that repeated demands had been made upon the appellants for an itemized account for what was due appellants, but that none had ever been furnished. On this state of case, something being due — and some considerable sum- — and nothing being tendered, the bill did not offer to do equity in this regard, within the meaning of the settled rule announced in Purvis v. Woodward, 78 Miss., 929 (29 South. Rep., 917), where we said: “In cases where it cannot be known with reasonable certainty what is due till an accounting shall have been had to determine that very thing, it is certainly enough if the complainant shall actually tender what he admits in good faith to be due, offering, moreover, to pay whatever shall be ascertained to be legally due.” This is now the settled rule on this subject here and elsewhere. Appellees should, therefore, have tendered some safe sum in good faith to cover the amount they honestly believed to be due, and have offered, with their bill, to pay whatever should be ultimately ascertained to be legally due. The bill fails to satisfy this rule.

The decree is reversed, but the case is remanded, with directions to the court below to allow the bill to be amended and the cross-bill of the Geiss-Mann Hardware' Company also to be amended, so as to meet this rule, and so as, further, to more specifically and particularly set out the facts constituting the fraud and the other usury, beside the usury properly charged in the bill. Decreed accordingly.

Reversed and remanded.