25 Ga. App. 446 | Ga. Ct. App. | 1920
Lead Opinion
(After stating the foregoing facts.)
An examination of the foregoing plea will show that it is distinctly alleged therein that usury was charged in closing the old loan 'and that the notes sued on and the deed given to secure them embraced, as part- of the consideration thereof, the old debt, “together with the interest and usury thereon.” In such a case as this “usury need not be pleaded with the same particularity as in a suit to recover it back or in a plea attempting to set it off against the plaintiff’s demand.” Hollis v. Covenant Building & Loan Association, 104 Ga. 318 (31 S. E. 215). We think this case is controlled by tlie decision in Lott v. Peterson, 23 Ga. App. 458 (98 S. E. 361). In the opinion in that case it is said (pp. 462-3): “ Whether or not, as a condition precedent to the making of the loans sued upon, the borrower agreed to pay up the original indebtedness with usurious interest, or whether the new transaction was bona Me or free from any usurious taint or a mere cloak to cover up usury, were questions of fact for a jury to determine.” Under this ruling the judge erred in striking the plea, and the further proceedings were nugatory.
Judgment reversed.
Dissenting Opinion
dissenting. In my opinion the facts set forth in the defendant’s plea are insufficient to sustain the allegations of usury therein, and the court did not err in striking the plea.