Seaver v. Ray

ELLISON, J. — This action was brought before a justice of the peace. On appeal to the circuit court plaintiff recovered judgment. The subject of the action is a promissory note filed with the justice for one hundred dollars loaned to defendant by plaintiff’s assignor and- for which usurious interest was charged, to exceed two per cent per month. To charge usury in excess of two per cent a month is made a misdemeanor by our statute (section 2358, Revised Statutes 1899) and subjects the offender to [81] fine and imprisonment. It being thus unlawful, defendant insists that tbe contract is void and that neither interest nor principal can be collected. In this position he fails to consider all of our statute bearing on the question of usurious interest. It is provided in the general statute relating to interest that notwithstanding the taint of usury the principal may be recovered less the usury paid, which is in excess of the legal rate of interest. [Sec. 3709, Revised Statutes 1899.] So whatever would have been the merit of defendant’s position had we only the criminal statute cited by him, it can have no effect as against the latter section, which expressly provides that the principal may be recovered credited by the usury which has been paid in excess of legal interest. The exact question was decided in Waite v. Bartlett, 53 Mo. App. 378. Another ground is assigned against the judgment, viz., that plaintiff changed the cause of action when he amended in the circuit court by abandoning the note deposited with the justice and filing a statement for money had and received. Defendant is in no situation to urge the point since this was done and no objection made by him either at the time or afterwards. He thereby waived the right to object here. [Warner v. Close, 120 Mo. App. 211.] The further point is made that the judgment is excessive in that the trial court did not allow a credit for a certain payment of usury charged to have been made. The action is one at law and we are bound by the finding of the trial court if there is any evidence in the cause or reasonable inference tending to support the finding; and we think there was. But the remaining objection is that interest was allowed at six per cent from the date of the debt. The court’s declaration of law so directed. It was proper to do so, for the statute (section 3709) expressly allows a recovery of the principal and interest at the legal [82] rate. The forfeiture of interest under that statute is of the usury “in excess of the legal rate;” such usury is to he considered a payment and goes to a reduction of the principal. We are cited to Bank v. Donnell, 195 Mo. 564, 570 (s. c., 172 Mo. 384), where it is held that a usurious note “bore no interest from the beginning,” and that it could not begin to bear interest until it became merged into a judgment for the principal. But that case involved a claim of a national bank and was governed by section 5198 of the Statutes of the United States, which declares that usury “shall be deemed a forfeiture of the entire interest.” The judgment was properly rendered for the plaintiff and will be affirmed. All concur.