Lindberg v. Burton

Christianson, J. The plaintiffs brought this action to recover the penalty for usury provided by § 6076, Comp. Laws 1913. The complaint sets forth three causes of action. The first cause of action is for interest upon an alleged usurious contract, alleged to have been paid on November 18, 1912. The second cause of action is for interest alleged to have been paid on November 18, 1913. And the third cause of action is for interest alleged to have been paid on November 18, 1914. The answer denies that the defendant at any time reserved, charged, or received any usurious interest. The answer sets forth at great length the business transactions between the plaintiffs and the defendant. According to the allegations of the answer such transactions commenced in the year 1908, and have continued since that time. Such transactions consisted of loans made to the defendant in 1908, advancements made for various purposes during the subsequent years,- and the taking of renewal notes from time to time. The answer also avers that the defendant is a man of veiy limited education and unable to compute the amounts due upon the various notes; and that at two different times when such renewals were made, he engaged the services of two different attorneys, and that the computations were made by such attorneys. It is specifically averred that the defendant at no time had any intention of charging, reserving, or receiving any usury, and that any errors made made in the computations or any overcharges included in the notes were the result of mistakes of computation, and that such amounts were not included for the purpose of exacting usury. The answer specifically admits that errors were made in such computations, in this that the plaintiffs were not allowed credit for a $75 payment, and that a note for $525 held by the defendant as collateral to their indebtedness was included in a renewal note by mistake; and defendant offers a remission of these amounts, with interest computed thereon from the dates the mistakes were made, and avers that the plaintiffs have been credited with these respective amounts upon the last renewal notes which the defendant now holds against the plaintiffs. The answer also .alleges that the first and second causes of action are barred by the Stat — 590 — utes of Limitations for tbe reason tbat tbe action was not commenced’, witbin two years from tbe time tbe alleged usurious transactions are alleged to have occurred. From tbe transcript of tbe evidence, it appears tbat tbe defendant is a man sixty-five years old, and resides near Pelican Eapids, Minnesota. He bas never been engaged in any business except farming. He is not, and never bas been, engaged in tbe business of making loans. Tbe loan involved in tbis action is tbe only one wbicb be ever made, with tbe single exception of one wbicb be made to a near relative. Tbe defendant is a man of very limited education. His correspondence was carried on largely by bis wife, and bis business transactions, such as preparing notes and computing tbe amounts due on notes to be renewed, were carried on through bis banker, or attorneys engaged by him for that purpose. Tbe transactions out of wbicb tbis action arose began in January, 1908. From January 2, 1908, to March 18, 1908, tbe defendant loaned tbe plaintiffs in all $3,825, for wbicb notes were taken. In September of tbat year be sold them some horses and advanced cash. Tbe purchase price of tbe horses and the cash advanced aggregated in all $825. Hence, tbe total original indebtedness of tbe plaintiffs to tbe defendant so incurred and evidenced by notes taken in 1908 aggregated $4,150. It also appears tbat during tbe years 1909, 1912, 1913, and 1914, tbe defendant made further advancements to tbe plaintiffs, wbicb according to defendant’s testimony and documentary evidence aggregated in all $5,068.70. There is some dispute as to some of tbe items wbicb go to make up tbis aggregate, but tbe greater portion of these advancements are undisputed. There is no dispute with respect to what payments have been made by tbe plaintiffs. Tbe original notes bear indorsements to tbe effect tbat tbe interest thereon up to November 1, 1908, bas been paid. It is significant tbat these are tbe only indorsements upon any of tbe notes, indicating tbat any interest bas been paid. Tbe evidence also shows tbat tbe defendant received tbe following payments from tbe plaintiffs: In January, 1910, $75; in October, 1912, $776.54; November, 1913, $1,685.74; November, 1914 (or January, 1915), $2,907.05. There is, however, no evidence showing tbe application made of these various payments. Tbe plaintiffs nowhere testify or even intimate tbat they directed tbat these payments be applied upon — 591 — interest. As already indicated tbe defendant made advancements from time to time. Tbe different notes were renewed from time to time. Tbe renewal notes were taken as collateral, and tbe old notes were not surrendered. And upon tbe tidal of tbis action tbe original notes taken in 1908, and tbe different notes subsequently taken, were all introduced in evidence. As already stated there are no indorsements upon tbe notes showing payments of interest, except those showing interest paid to November 1, 1908. Tbe only deduction that can reasonably be drawn from tbe transactions as disclosed by tbe evidence is that tbe payments were applied generally upon tbe indebtedness of tbe plaintiffs, and that there was neither any direction by tbe plaintiffs that tbe sums paid be applied on interest, nor any mutual understanding between tbe parties that they should be so applied. At tbe close of plaintiffs’ case tbe defendant moved for a directed verdict on tbe ground that there was no evidence from which tbe jury could find “that any amount of usury has been paid if any at all has been charged and paid; and there is no evidence in tbe case from which tbe jury can determine what, if any, sum in excess of 12 per cent interest has been paid.” And upon tbe close of all tbe testimony tbe defendant renewed tbe motion for a directed verdict and moved for such verdict upon tbe grounds, among others, that under tbe undisputed evidence tbe plaintiff bad failed to establish any of tbe causes of action set forth in tbe complaint, and that tbe evidence shows clearly that- there has been no usurious charge “paid by tbe plaintiffs for tbe loan or forbearance of tbe moneys loaned to them by tbe defendant.” Tbe motion for a directed verdict was denied, and tbe cause was submitted to a jury, which returned a verdict in favor of tbe defendant. Tbe jury also found in answer to interrogatories submitted by tbe court that the defendant bad not knowingly charged any bonus. Judgment was entered pursuant to tbe verdict for a dismissal of plaintiffs’ action, and plaintiffs have appealed from such judgment. Our statute relative to usury provides: “No person, firm, company or corporation shall directly or indirectly take, or receive, or agree to take or receive in money, goods or things in action or in any other way, any greater sum or any greater value for tbe loan or forbearance of money, goods or things in action than 12 per cent per annum; and in tbe computation of interest tbe same shall not be compounded. Any viola — 592 — tion of this section shall be deemed usury; provided, that any contract to pay interest not usurious on interest overdue shall not be deemed usury.” Comp. Laws 1913, § 6073. “The interest which would become due at the end of the term for which a loan is made, not exceeding ninety days’ interest in all, may be deducted from the loan in advance, if the parties thus agree.” Section 6075, Comp. Laws 1913. “The taking, receiving, reserving or charging a rate of interest greater than is allowed by §§ 6073 and 6075 when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill ■or other evidence of debt carries with it or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back in an action for that purpose twice the amount of interest thus paid from the person taking or receiving the same; provided, that such action is commenced within two years from the time the usurious transaction occurred.” Comp. Laws 1913, § 6076. The last section is a duplicate of a provision contained in the National Banking Act, and was enacted in this state long after the original provision had been adopted by Congress. It will be noticed that there are two entirely different provisions in § 607 6, supra, and that each part applies to a different condition. It is first provided that where usurious interest has been knowingly contracted for, but not paid, the entire interest on the note or other evidence of indebtedness is forfeited. It is next provided that where such usurious interest has been paid the person by whom it has been paid, or his legal representative, may recover back, from the person who has taken or received it, twice the amount of the interest paid, in an action commenced within two years from the time the usurious transaction occurred. The purpose and effect of statutory provisions similar to § 6076, supra, have been considered by many of the courts of this country, including the Supreme Court of the United States. And the authorities are generally agreed that the statute provides for two different contingencies, or two distinct classes of usurious cases, and prescribes a different penalty as to each class. They further agree that in cases falling within the first provision, — i. e., where usurious interest has been knowingly contracted for, but not paid, — all interest on the — 593 — usurious obligation is ipso facto forfeited, tbe debtor can defend against any claim for interest, and tbe creditor can recover only tbe sum lent, without any interest whatever. But in eases falling within the second provision, — i. e., where the debtor has in fact paid interest upon the usurious -contract, — he cannot plead such payment either as a credit on, or as an offset or counterclaim to, the principal; but his only remedy is to maintain the action to recover the penalty provided for in the second part of § 6076, supra. Schuyler Nat. Bank v. Gadsden, 191 U. S. 451, 48 L. ed. 258, 24 Sup. Ct. Rep. 129; Haseltine v. Central Nat. Bank, 183 U. S. 132, 46 L. ed. 118, 22 Sup. Ct. Rep. 50; Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658; Barnet v. Muncie Nat. Bank, 98 U. S. 555, 25 L. ed. 212; Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 29, 23 L. ed. 196; Walsh v. Mayer, 111 U. S. 31, 28 L. ed. 338, 4 Sup. Ct. Rep. 260; Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 337; McCarthy v. First Nat. Bank, 23 S. D. 269, 23 L.R.A.(N.S.) 335, 121 N. W. 853, 21 Ann. Cas. 437. In other words the courts uniformly hold that the remedy afforded by the statute is exclusive, and that a party who desires to claim the right granted by the statute must avail himself’ of the remedy therein prescribed, and can resort to no other form or mode of procedure. As already indicated the instant action is brought under the second provision of § 6076, supra, to recover twice the amount of interest alleged to have been paid upon a usurious contract. The action is one for the recovery of a penalty. First Nat. Bank v. Morgan, 132 U. S. 141, 144, 33 L. ed. 282, 283, 10 Sup. Ct. Rep. 37; Barnet v. Muncie Nat. Bank, 98 U. S. 555, 558, 25 L. ed. 212, 213. In such action the defendant is charged with violating the law and thereby rendered liable for the penalty. It is elementary that a party who asserts a right to recover from another has the burden of establishing such right by a preponderance of the evidence. It is equally elementary that a violation of law is never presumed, and one who alleges such violation and predicates the right to recover a penalty thereon has the burden of proving the existence of the facts alleged. 39 Cyc. 1050; 30 Cyc. 1357. Under the plain words of the statute an action to recover the penalty prescribed by § 6076 lies only “in caso the greater rate of interest has been paid.” A party who seeks to recover the penalty must therefore — 594 — allege and prove that such “greater rate of - interest” has actually been paid. The statute contemplates an actual payment, and not merely a further promise to pay. The statute clearly makes a difference between interest which a note, bill, or other evidence of debt “carries with it, or which has been agreed to be paid thereon,” and interest which has been paid. Interest is not “paid” within the meaning of the statute when included in a renewal note or evidenced by a separate note. “The time the usurious transaction occurred” has reference to the actual payment of the interest from which the penalty arises. Brown v. Marion Nat. Bank, 169 U. S. 416, 419, 42 L. ed. 801, 802, 18 Sup. Ct. Rep. 390; First Nat. Bank v. Lasater, 196 U. S. 115, 118, 49 L. ed. 408, 409, 25 Sup. Ct. Rep. 206; Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658. As already stated, there is no evidence in the ease at bar showing that the plaintiffs have paid any interest whatever to the defendant, or that any of the payments made have been so received by the defendant, with the single exception of the payments made for interest up to November 1, 1908. This payment is not involved in this litigation, however. No claim is made, therefore, in the complaint, and manifestly an action for its recovery would be barred by the express provisions of the statute. Under the statute, a usurious obligation bears no interest. All interest thereon is ipso facto forfeited. And such forfeiture is not waived by the giving of renewal notes. Nor do such new notes operate as payment of the usurious obligations for which they are given, but in so far as they embrace forfeited interest, the new notes are without consideration. Brown v. Marion Nat. Bank, supra. Under the evidence in this case, the court would not be justified in applying the payments made by the plaintiffs as upon interest. See 39 Cyc. 1026. Hence, the plaintiffs clearly failed to establish any cause of action against the defendant, and the court should have granted the motion for a directed verdict. It would therefore serve no useful purpose to discuss the errors assigned upon the court’s instructions to the jury, as the verdict was clearly right. Driesbach v. Second Nat. Bank, supra. The judgment appealed from must be affirmed. It goes without saying that the decision in this case will not, and does not, bar the plaintiffs from defending against the paying of interest on the obligations which — 595 — they owe tbe defendant, on tbe ground that all interest is forfeited on account of usury. Hence, if any usury exists, tbe plaintiffs still have ample remedy. Affirmed. Grace, J. I concur in tbe result.