I concur in the result announced in the opinion of Mr. Justice Carter, but wish to express my views of the case in somewhat different form, as follows: *Page 389
This is an action upon a promissory note executed and delivered by the defendant to the plaintiff, dated March 15, 1926, due September 15, 1926, for $1,175.04, with interest at 8 per cent. from April 10, 1926, and 10 per cent. attorney's fees.
The defendant admitted the execution and delivery of the note, and set up two defenses to the plaintiff's action:
(1) That he executed and delivered the note upon an agreement with the plaintiff's agent that he might discharge it by the payment by March 29th of the sum of $1,005.35 without interest, or at any time thereafter by the payment of that amount with 8 per cent. interest from March 29th which he had tendered to the plaintiff in September.
(2) That the note for $1,175.04 was usurious, constituting an agreement to pay more than he legally owed the plaintiff.
The case was tried before his Honor Judge Grimball and a jury. At the close of the testimony each party moved for a directed verdict. The motion of the plaintiff was granted and a verdict rendered in its favor for the full amount of the note, interest, and attorney's fees. From the judgment entered thereon, the defendant has appealed.
The facts are these: On January 16, 1926, the plaintiff and the defendant entered into a written agreement for the sale of certain fertilizers by the plaintiff to the defendant. In the contract was a schedule of what was termed "carload consumers' price per ton" for the several kinds of fertilizer listed. The defendant was, under the terms of the contract, allowed a discount of 13 per cent. for cash. The contract was approved by the plaintiff specifically upon a cash basis; that is, a shipment or shipments under a bill of lading with draft attached, what is known as an "order notify" shipment.
In February the defendant placed an order for 40 tons, which was filled on February 15th by shipment to C.C. Brigman, a customer of the defendant J.O. Brigman, as an *Page 390 "order notify" shipment. The invoice at the listed prices, less the discount allowed to the defendant for cash, amounted to $1,005.35. A draft with bill of lading attached, for that amount, upon the defendant, was forwarded to the Marion National Bank for collection. When the draft was presented for payment, the defendant was unable to meet it, and requested the bank to telephone the company for the consent to a delivery of the fertilizers without payment of the draft. The company consented, and the shipment was delivered upon the promise of the defendant to pay the cash within a few days. The defendant paid no attention to his engagement to pay the draft, and on February 23d the plaintiff sent him a note for him to sign in the sum of $1,175.04, which represented the invoice price without the discount allowed for cash.
The defendant delayed the execution and return of the note, though frequently requested by the plaintiff to either sign and return the note, which was based upon the time prices, or remit in cash for the invoice, but begging for further time in which to settle upon a cash basis.
On March 11th, the plaintiff wrote to the defendant: "We cannot consistently wait any longer for settlement of this shipment and must ask you either to send us cashier's check by return mail or sign the note and send it in."
The defendant still neglected to do either, and a representative of the plaintiff had to go to his home for a settlement one way or the other. He did not have the cash to close the transaction and get the benefit of the discount, and on March 15th, upon the insistence of the plaintiff's representative, executed and delivered the note for $1,175.04, the credit price, to the plaintiff, due in September. He was still anxious, naturally, to get the benefit of the cash price, and insisted upon the execution by the plaintiff of the following memorandum, which was delivered to him at the time the note was given. "I will hold note until March 29th, 1926, to be redeemed by paying $1,005.35." *Page 391
The plaintiff was not only willing to accommodate the defendant by authorizing the delivery without payment of the draft, about the middle of February upon his promise to make early settlement, but to extend the time within which he could get the benefit of the cash settlement to March 29th, six weeks later than the time the defendant should have paid the draft.
The defendant in his answer contends that the agreement between him and the representative of the company, at the time of the execution of the time note, was that he should be entitled at any time before the note fell due, to liquidate it by the payment of the cash price. Not only does he produce no evidence to sustain this contention, but the same would have been inadmissible under the parol evidence rule, for the memorandum specifically limits this privilege to March 29th.
After the note fell due in September, the defendant made a tender based upon this theory, of the cash price with interest from March 29th, which was refused, and properly so.
The transaction clearly shows a purpose on the part of both parties to convert what was a cash transaction into a time transaction, with the option to pay by March 29th which the defendant did not avail himself of. It was one entered into by the parties with full knowledge of all the circumstances and perfectly valid.
I do not perceive the remotest ground for the contention that it was tainted with the vice of usury.
MESSRS. JUSTICES BLEASE and STABLER concur.