Lawler v. Vette

CAULFIELD, J. (after stating the facts). — In order to entitle a borrower to recover usurious interest there must have been an actual payment of the usury. The fact that the borrower gives his note therefor will not entitle him to recover as for usurious interest paid. [29 Am. and Eng. Ency. Law (2 Ed.), p. 546.] A cause of action to recover on the ground of usury does not accrue until the usurious interest is actually paid. [Webb on Usury, see. 466; Anderson v. Trimble, 18 Ky. Law Rep. 507, 37 S. W. 71.] And not only must the amount charged as usurious interest or some portion thereof have actually been paid, but the money actually borrowed with lawful interest must also have been paid before any amount can be recovered tas usury. It is only when the total amount actually paid exceeds the principal and lawful interest that anything can be recovered as usury and then only the amount of such excess.. If the principal and legal interest remains unpaid no action to recover usury‘will be entertained. [Tyler on Usury, p. 422; Webb on Usury, sec. 466; Hawkins v. Welch, 8 Mo. 490; Kearney v. First Natl. Bank, 129 Pa. St. 577; Chaplin v. Currier, 49 Vt. 48; Kendall v. Davis, 55 Ark. 318, 18 S. W. 185.] In this state it had been held [350] that the borrower could not recover back usurious interest which had been paid, at all. [Bank v. Haseltine, 155 Mo. 58, 55 S. W. 1015; Ransom v. Hays, Garn., 39 Mo. 445.] At the time the Haseltine case was decided our statutory provisions concerning interest were the same as now, except in the following particular: In 1905, which was after the Haseltine case had been decided, the Legislature amended what was then section 3708 of the Revised Statutes 1899, and is now the first part of section 7182 of the Revised Statutes 1909, by adding thereto the following: “Any person who shall violate the foregoing prohibition of this section shall be subject to be sued, for any and all sums of money paid in excess of the principal and legal rate of interest of any loan, by the borower, or in case of borrower’s death, by the administrator or executor of his estate, and shall be adjudged to pay the costs of suit, including a reasonable attorney’s fee to be determined by the court.” It is apparent that this added provision, without which our Supreme Court had declared that a borrower could not recover back usurious interest which he had paid, in giving the right to recover back such interest, places the same limitation upon it which is prescribed or stated by the text-books and authorities first above mentioned and which was recognized by our Supreme Court in the early case of Hawkins v. Welch, supra, for it permits the usurer to be sued only for “money paid in excess of the principal and legal rate of interest.” And this is logical and just, for until a borrower has parted with the money to be paid as usury he still has it and suffers no loss. If he has paid nothing more than the amount actually borrowed with lawful interest, he «¡has paid no usury and has no just ground for complaint. If he is sued he may have credit for it upon his indebtedness (Sec. 7183, R. S. 1909), and if the usurer fails to sue him and holds the notes representing the usurious portions of the transaction claim351 mg' a lien therefor on his property, the borrower may have them cancelled or have other equitable relief upon paying’ or tendering nothing more than the principal and lawful interest. It is evident from the foregoing statement of the law that plaintiff’s petition is framed upon an erroneous theory, for it makes no allegation beyond the fact that the plaintiff secured a loan of $3000 from the defendant and that defendant “retained as compensation for the loan of said sum, the sum of five hundred dollars ($500), in violation of the statute in such cases made and provided.” There is no allegation or suggestion that plaintiff or any one for her repaid any portion of the loan to the defendant. Indeed it is quite clear that plaintiff’s counsel had no such idea in framing the petition. However, if we were concerned merely with the petition — that is, if the evidence had disclosed a case entitling plaintiff to recover and the court had not misdirected the jury as to the law, we might look upon the petition with that charity which the law indulges in favor' of proceedings originating before a justice of the peace, and hold it sufficient, at least after verdict.. But when the trial court came to instructing the jury as to the law of the case we find that it adopted the same theory upon which plaintiff had framed her petition, for at the instance of the plaintiff it told the jury in effect that all plaintiff need prove in order to recover was that the defendant made her a loan of $3000 and retained out of the sum loaned $500 as compensation for-the loan. It impliedly eliminated the necessity of a finding that plaintiff had actually made payment as we have discussed, and thereby committed error. Moreover, the demurrer to the evidence raised another question. While the evidence tends to prove that the notes were paid, there is not a scintilla of evidence tending to prove when they were paid. The rule is, that when payment is shown to have been [352] made, but there is no evidence of when it was made, it is presumed to have been made on the day the debt was due. [Johnson v. Carpenter, 7 Minn. 176; 9 Ency. of Evid., p. 721; Lawson’s Presumptive Evid., p. 104.] This rule comes under the more general oné that “in commercial transactions the presumption is that the usual course of business was followed by the parties thereto” (Lawson’s Presumptive Evid., p. 82), a rule which frequently has been applied by the courts of this state. Applying this rule, as we must, it appears that when this suit was commenced, May 24, 1909, only eighteen of these notes, representing $.1350 and interest thereon at six per cent had been paid. The balance were not paid until after this suit was brought. As we have already pointed out, until something in excess of the amount actually borrowed, $2500, with lawful interest, had been paid to the defendant, no cause of action accrued to plaintiff. She stands then in the position of having commenced this suit long before her cause of action accrued. This is fatal to her maintaining this action. The general rule is that a party can only succeed, when he has a cause of action at the date of the commencement of his suit. If there is anything, such as the making of payments, necessary to be done in order to make his cause of action complete, such thing must be done before suit is commenced, for, if it is done afterwards, even before the trial, it is then too late and of no avail so far as the then proceeding is concerned. [McDowell v. Morgan, 33 Mo. 555; Mason v. Barnard, 36 Mo. 384; Turk v. Stahl, 53 Mo. 437, 438; Freimuth v. Rupp, 8 Mo. App. 568; Tobin v. McCann, 17 Mo. App. 481; Duryee v. Turner, 20 Mo. App. 34; Werth v. City of Springfield, 22 Mo. App. 12; Russell v. Englehardt, 24 Mo. App. 36; Brown v. Shock, 27 Mo. App. 351; Jennings v. Zerr, 48 Mo. App. 528; Heard v. Ritchey, 112 Mo. 516, 20 S. W. 799; Payne v. School District, 87 Mo. App. 415.] As was said in one case, “It is elementary law, [353] that a plaintiff must recover, if at all, on his right of action as it existed at the institution of his suit. One cannot bring another into court and tax him with cost in defending against a non-existent right, upon the ground that a right may be created pending the procedure.” [Tobin v. McCann, 17 Mo. App. 481.] Of course if his suit is defeated upon this ground the judgment is not a bar to another action. [Dillinger v. Kelley, 84 Mo. 561.] And we are of the opinion that the point that the suit was prematurely brought was properly and sufficiently raised and preserved by offering an instruction in the nature of a demurrer to the evidence and excepting to its refusal. In Freimuth v. Rupp, supra, only a memorandum opinion was published, but by resorting to the original opinion on file we find that this court held that as the evidence disclosed the fact under discussion here it was error to refuse an instruction in the nature of a demurrer to the evidence. In Tobin v. McCann, supra, the court reversed the judgment and dismissed the cause though the point that the suit was prematurely brought does not appear to have been suggested except- by the offering of an instruction in the nature of a demurrer to the evidence. Werth v. City of Springfield, supra, was tried upon an agreed statement of facts. The judgment was reversed and the cause remanded because the suit was prematurely brought although that fact appears to have been developed only by the evidence and the only errors assigned were the refusal of instructions which were substantially demurrers to the evidence, and the finding of the court against the defendant upon insufficient evidence. In Duryee v. Turner, supra, the fact that the suit was prematurely brought was disclosed by the evidence and this court reversed the judgment and dismissed the suit upon the defendant’s exception to the judgment for want of evidence to support it, [354] such, exception being saved in a demurrer to the evidence and defendant’s motion for a new trial. For the error aforesaid in giving plaintiff’s instruction to the jury, and in refusing defendant’s demurrer to the evidence, the judgment is reversed and the cause remanded. Reynolds, P. J., and Nortoni, J., concur.