Doyle v. L. Herzog & Bros., Dry Goods Co.

Stevens, J., delivered the opinion of the court. This appeal is a result of a controversy over interest in the sum of sixty dollars and eighty-five cents, claimed to be due appellee by Mr. Doyle, the appellant, and judgment for which the lower court awarded. Appellee company sued appellant for the balance of an open account. The ease was tried upon an agreed statement of facts. The agreed statement, among other things, shows: ‘ That the amount due on the principal is one hundred and six dollars and seventy-four cents;” “that the amount of interest properly due, if any, at six per cent, is sixty dollars and eighty-five cents, and that, if the plaintiff is entitled to the interest, the judgment should he for one hundred and sixty-seven dollars and fifty-nine cents, with interest at six per cent, from November 1, [162] 1915;” “that the proper interest calculation based on the invoices introduced at the trial in the lower court by Mr. Eobt. Doyle at eight per cent, would be eighty-one dollars and ten cents;” “that the amount claimed as interest is for an amount greater than eight per cent.;” “that the total amount of principal and interest at eight per cent, from November 1, 1915, would be one hundred and eighty-seven dollars and eighty-four cents;” “that the defendant never at any time agreed to pay any excessive interest;” “that an account rendered about July 1, 1915, claimed interest at a greater rate than eight per cent.” It further appears from the agreed statement that the defendant tendered a check for one hundred and six dollars and seventy-four cents prior to the institution of any suit, and that the check was refused. The so-called itemized account or statement shows that appellant received merchandise to the value of approximately one thousand dollars and made many partial payments thereon from November 23, 1914, to September, 1915. Appellant invokes section 2678, Code of 1906, as amended by chapter 229, Laws of 1912. That portion of Act of 1912 brought under review is as follows: “If a greater rate of interest than eight per cent, shall be stipulated for or received, in any case, all interest shall be forfeited, and may be recovered back, whether the contract is executed or executory.” There is here no contention that excessive interest was stipulated for. There was no contract whatever in reference to interest. The only question, then, is whether appellee “received” usurious interest. As we construe the agreed statement, after crediting all partial payments, there is a balance of one hundred and six dollars and seventy-four cents admittedly due on the principal. The circuit court allowed this principal, with six per cent, interest. The action of the trial court, in our opinion, must be affirmed. The agreed statement dees [163] not affirmatively show that the creditor actually received usurious interest in and as a part of the several partial payments made on the open account, and, if so, how much. On the contrary, the parties agreed that all the principal has not yet been liquidated. The statute, in our judgment, does not penalize the creditor merely for demanding a greater rate of interest than eight per cent., but the test is whether the creditor actually received an unlawful or excessive amount of interest. It will be understood, of course, that what we are here saying has no reference to that portion of the statute forbidding the creditor “stipulating” for excessive interest. If the creditor receives usurious interest in any case, all interest is then forfeited and may be recovered back. We can easily conceive of a case where even on an open account the parties in agreeing upon the application of partial payments might agree that a certain portion of the payments should be applied toward liquidating the interest, and if the portion so applied is excessive, then the statute would be violated. This case, however, does not present an instance where the parties agreed upon the application of the payments, and the burden of proof is here upon the appellant to show that he has actually paid usurious interest. If the creditor has taken some of the partial payments and attempted to apply them on usurious interest charges, the debtor when sued for any balance has the lawful right to insist upon a proper and legal application of the payments, and if upon proper accounting the payments are applied toward the principal and lawful interest, and there still remains a balance due on the principal, then certainly the statute has not been violated. We can only deal with the facts as presented, or, as in this ease, agreed upon. The record before us presents no legal ground of complaint. Affirmed.