Cunningham v. Deming Inv. Co.

LESTER, J. The parties to this appeal will be referred to as they appeared in the district court. The Deming Investment Company brought suit against Salina Cunningham and Callie Cunningham on a series of notes and for the foreclosure of a certain real estate mortgage executed by said defendants for the purpose of securing the payment of said indebtedness. It also appears that Anna Mc-Keown and Tom McKeown claimed an interest in the said real estate, and they were also made parties defendant. The defendants Salina Cunningham and Callie Cunningham filed an answer in which they sought to set up the pitea of usury in the making and execution of said notes and mortgage. A demurrer to the answer of the defendants Salina and Callie. Cunningham was sustained to the 'extent that the said answer related to the plea of usury. The defendants Anna and Tom McKeown filed their answer, which constituted a general denial of th’e allegations contained in the. plaintiff’s petition. It appears that the plaintiff introduced certain evidence, and the court thereafter rendered judgment in favor of the plaintiff and against the defendants. The defendants, in due time, filed a motion for new trial, which was by the court overruled, and the defendants prosecute this appeal for the purpose of reversing the judgment therein entered. *131 Defendants failed to embrace in tbe case-made tbe evidence introduced by plaintiff at tbe trial of tbe cause, therefore, we will not consider tbe proposition as to whether tbe court committed error in rendering judgment on tbe sufficiency of tbe evidence. In tbe case Walker v. Love, 62 Okla. 28, 161 Pac. 787, this court announced tbe rule to be: “This court is unable to determine whether or not a judgment is supported by tbe evidence when tbe evidence is not incorporated in the record.’' Tbe principal proposition presented by tbe defendants Salina Cunningham and Callie Cunningham is that the court erred in sustaining tbe d'emurrer to their answer. The plaintiff, in its petition, alleged that tbe defendants Salina Cunningham and Callie Cunningham bad borrowed from tbe plaintiff $3,000 on the 10th day of January, 1921, and that the plaintiff took nine notes,- each note payable annually, beginning February 1, 1923, and ending February, 1, 1931. In tbe plaintiff’s petition it was shown that tbe last interest note on said loan was to become due February I, 1931. Tbe defendants Salina and Callie Cunningham in th'eir answer failed to show on what date tbe principal note was to become due. We think that where a person is seeking to secure tbe benefit from á plea of usury, such plea should be definite and certain, so that by an examination of such plea tbe court can determine that if such plea is true, such party would be entitled to prevail. In tbe instant case th'e answer of tbe defendants wholly failed to set forth any state of facts tending to show that tbe contract between the plaintiff and the defendants was burdened with usury. Tbe rule regarding th'e plea of usury, as stated in 39 Cyc. 1043, is as follows: “And it is not sufficient to allege generally that th'e contract is usurious without setting out the facts that make it so, or to state facts which may lead the opposite party to infer that he has to meet that defense. Pleadings should consist of aver-ments and not of inferences. In accordance with the requirements stated, the pleadings should show a loan or forbearance, the amount of the sum loaned or forborne, the parties to th'e contract, the time when, and the place where, the contract was entered into and the time of its maturity, the amount of usurious interest reoeived or agre'ed to be paid. * * *” Again, in 22 Cyc. Pleading & Practice, 430, it is said: “The rules' in regard to the pleading of usury have always been exceedingly strict, since if the defense is established it operates in a certain sense to enforce a forfeiture against the creditor. It is necessary both at law and in equity that the plea or answer should specifically set forth, with the utmost certainty and distinctness, th’e terms and nature of the usurious agreement or transaction and all the facts and circumstances in relation thereto.” We think that the answer of the defendants Salina and Calli'e Cunningham was wholly insufficient to constitute a plea of usury. Judgment is affirmed. MASON, V. C. J., and HARRISON, HUNT, CLARK, and RILEY, JJ., concur. Note. — See under (1) 39 Cyc. pp. 1042, 1043 ; 27 R. C. L. p. 266. (2) 4 C. J. p. 336, §1966 ; 2 R. C. L. p. 158; 1 R. C. L. Supp. p 417; 4 R. C. L. Supp. 86.