Bowman v. Strother

ELLISON, J. Plaintiff’s petition is' in two counts, one on a note for six thousand dollars and one on a note for four thousand dollars. The judgment was for plaintiff on both counts in the trial court. : - The parties hereto make charges against each other of being guilty of unconscionable usury, it being stated by defendant that plaintiff’s excessive charges for the use of money had caused his financial failure, and the plaintiff answering with the charge that defendant had. borrowed the money from him for usurious purposes. We cannot concern ourselves with those things further than the charge of usury' against plaintiff may affect his right to recover in this action. Conceding that there was evidence tending to prove that plaintiff received interest on the notes at a rate in excess of two per cent per month, how will that affect plaintiff’s right to recover? Defendant insists that if more than two per cent a month was charged him, the notes are void and no amount could be recovered. He bases this on the ground that the statute (sec. 2358, R. S. 1899) forbids receiving or exacting interest in excess of two per cent per month and makes such act a misdemeanor. He calls our attention to the principle of law that a contract forbidden by statute and’ the making of which is a misdemeanor, is absolutely void, citing Downing v. Rieger, 7 Mo. 585, and Tri-State Amus. Co. v. Amusement Co., 192 Mo. 404. [102] That proposition of law is not denied by plaintiff. He, however, contends that in civil action the statute on the subject of interest provides the remedy for such illegal charge, in so far as it may affect the civil judgment to be rendered. That statute (sec. 3709, R. S. 1899) is that whenever usurious interest is charged, all of it in excess of the legal rate shall be deemed a payment on the principal. Putting this criminal and civil statute together, we find that whenever in a civil action usury, whether in a greater or smaller rate, is charged, the amount in excess of a legal rate is deemed a payment upon the principal debt, and it is directed to be credited on the debt. The criminal statute does not supersede the civil remedy; it is merely supplementary thereto. So that when the usury charged is so great as to be in excess of two per cent a month, there may also be added a punishment by way of criminal prosecution. . The question here decided has been before this court on two other occasions when we announced conclusions in keeping with what is here said. [Waite v. Bartlett, 53 Mo. App. 378; Seaver v. Ray, 137 Mo. App. 78.] Something is said by defendant as to his having filed a petition in bankruptcy in the Federal court, since this case was begun in the State court. Nothing is alleged as to bankruptcy in the pleadings and we have no means of knowing anything about it; and cannot see how such alleged proceeding can affect the question whether the judgment of the trial court in this case should be affirmed or reversed. The bankruptcy matter seems to have come into the case during the trial in an incidental or collateral way to show an admission of this defendant, and statements of counsel as to the status of the defendant in the bankruptcy court are put in the record in parenthesis, saying that he had not been discharged, etc. But we cannot discover anything [103] that would authorize us to take cognizance of the matter. We think defendant’s point as to proof of agency of plaintiff’s agent, is not well taken. The judgment is affirmed. All concur.