Pritchard v. . Meekins

Davis, J. The jury having found that it was no part of the agreement and consideration that the plaintiff was to pay in addition to the sum loaned all costs and expenses, attorney’s fees, &c., two questions only are presented for our consideration. First. Is the action barred by the statute of limitations ? The sum of $2,500 was borrowed and notes in the aggregate for $2,772 were given, in August, 1883; the payments were made and the notes settled and surrendered on the 17th of November, 1885, and the action commenced on the 19th of November, 1885. The learned counsel for the defendant insisted that the usurious transaction, if any, occurred when the notes were given in August, 1883, and that two years from that time having elapsed before the action was commenced the statute barred, and for this position he relied upon the language of The Code, §3836. That section provides that “the taking, receiving, reserving or charging a rate of interest greater than is allowed * * * shall be deemed a forfeiture of the entire interest * * * and in case a greater rate of interest has been paid, the person by whom it has been paid * * * may recover back in an action in the nature of an action of debt twice the amount of interest paid: Provided, such action shall be-commenced within two years from the time the usurious transaction occurred.” No such construction as is insisted upon by the defendant’s counsel can be placed upon this statute. A usurious transaction occurred when the defendant received a greater rate of interest than was allowed by law. It was the usurious transaction of talcing or receiving that entitled the person by whom the usurious interest was paid to recover it back; and in this case the transaction occurred only two days before the *247 action was commenced. The statute did not bar. Godfrey v. Leigh, 6 Ired., 396; Stedman v. Bland, 4 Ired., 296. Second. It was insisted that the assignment of the notes of Joshua Davis and the payment of the monej', were not, under a proper construction of §3836 of The Code, such a payment as would subject the defendant in this action to the penalty for usury. The payment of $1,400 in money and the acceptance of the notes of Joshua Davis for $2,000, endorsed by the plaintiff “without recourse,” and the surrender of the note of August, 1883, were in full payment, and the plaintiff ceased to be a debtor or in any way liable to the defendant. It was a payment in money and money’s worth, and when received by the defendant in payment subjected hipa to the penalty. The notes of Joshua Davis were accepted by the defendant in payment pro tanto, and that was a discharge in the same manner as if he received money. Ligon v. Dunn, 6 Ired., 133; Symington v. McLin, 1 D. & B., 291; Godfrey v. Leigh, and Stedman v. Bland, supra; Mills v. Building and Loan Association, 75 N. C., 292; Dawson v. Taylor, 6 Ired., 225; Shober v. Hauser, 4 D. & B., 91. There is no error and the judgment is affirmed. No error. Affirmed.