Crittenden v. Ragan

Mississippi Supreme Court
Crittenden v. Ragan, 89 Miss. 185 (Miss. 1906)
42 So. 282
Whitfield

Crittenden v. Ragan

Opinion of the Court

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 *191had 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.

Reference

Full Case Name
O. B. Crittenden v. Samuel C. Ragan
Cited By
2 cases
Status
Published
Syllabus
1. Pleadings. Usury. An averment that defendant discounted the note of his customer given for advances, placing the amount of the note, less the discount, to his credit, and in addition charged him ten per centum interest per annum — the maximum legal rate — on the cost price of the advances; sufficiently pleads usury. 2. Chancery Practice. Equitable relief. Tender. A hill in equity by a second mortgagee to vacate a sale made under a first mortgage, praying an accounting of the sum due 'on the first mortgage and a resale of the property without making any tender at all, although admitting some debt to he due to the first mortgagee, is not saved from a demurrer by a charge of unsuccessful demands on the first mortgagee for an itemized account of what was due him.