121 Wash. 685 | Wash. | 1922
On and after February 1, 1916, James E. Hutton and Jeannette Hutton engaged in the pawnbroker’s business, under the trade-name of Empire Mortgage Loan Company, in Seattle. They borrowed money, from time to time, from Vahan Boyd and J. V. Boyd, executing and delivering their notes therefor, and at the same time delivering into the possession of the Boyds, as collateral or pledges, valuable articles of jewelry and other personal property of much greater value than the money borrowed, which articles the pawnbrokers had received in the usual course of their business. The identity of the articles pledged to the Boyds changed from time to time as the owners redeemed them from the pawnbrokers; at which times other articles of equal value were substituted so as to continue the total value of the pledges in possession of the Boyds. Hpon the failure of the makers of the notes to pay, the Boyds brought this action against the Huttons to recover on twenty several promissory notes aggregating $11,500, and to foreclose their pledgees’ lien on the articles in their possession. The answer of the defendants was that the notes declared on in excess of $8,000 had been paid and covered by the notes aggregating $8,000, which latter were to that extent renewals of the excess mentioned. The answer admitted the notes amounting to $8,000, and set up as a defense thereto that all of them were made and delivered with the corrupt and unlawful agreement that the plaintiffs should receive interest on the several sums in excess of twelve per cent per annum, to wit, eighteen and thirty per cent per annum, and that at such rates defendants had paid interest in the sum of $3,545.50.
Julia B. Hoitt, J. P. Smith, Matilda Ryan and H. R. Fischnaller separately intervened in the action, as cred
The answer of the Huttons to the complaint of Julia B. Hoitt further alleged that all of the notes she sued on were made and delivered with the agreement between the parties that interest should be paid in excess of twelve per cent per annum and that the same were usurious. This was denied by her reply. Because, of allegations on the part of some of the inter
Upon appropriate findings entered at the trial, it was determined that the action of the plaintiffs be dismissed because of the usurious character of the notes sued on, the amount of the principal of which was exceeded by penalties imposed by the statute. For the same reason, the action of the intervener Julia B. Hoitt as to all the notes held by her, other than the $7,400 note, was dismissed. She was given judgment on the $7,400 note in the sum of $6,400 and interest, she having admitted the receipt of $1,000 on the principal. Judgment was given against the Huttons for $3,600 and interest in favor of Matilda Ryan; for $2,120 and interest in favor of J. P. Smith; and for $500 and interest in favor of H. R. Fischnaller. Ralph H. Hoitt was dismissed out of the case, and it was further ordered that the chattels theretofore held as pledges by the plaintiffs were free from any claim on their part and were to be taken and held'by the receiver.
The plaintiffs have appealed from the whole of the judgment. The Huttons and the receiver have appealed from that part of the judgment in favor of Julia B. Hoitt, and she has appealed from that portion of the judgment denying recovery on the three notes other than the one for $7,400.
Further, it is' claimed by them that the offset of unpaid interest should have included only that called for by the note down to the date of demand for payment or commencement of the action, and not until the date of judgment. The statute, § 7804, Rem. Comp. Stat., with reference to usurious contracts, provides, “and if interest shall have been paid, judgment shall be for the principal less twice the amount of the interest paid, and less the amount of all accrued and
Further, the plaintiffs contend the interveners did not have sufficient interest in the original action to entitle them to participate in the trial Enough has been said, we think, to show they had a very vital interest in it. The result proves it; and besides, since no claim is made that the computation of the offsets is wrong, assuming that the trial court adopted the proper basis, as we have found it did, by doubling the interest already paid and adding thereto the accrued and unpaid interest, the plaintiffs are not entitled, to recover anything, and hence cannot claim injury or prejudice by reason of the interventions.
Next we consider the cross-appeals from that portion of the judgment in favor of Julia B. Hoitt in the sum of $6,400 and interest on the $7,400 note. The contentions of the cross-appellant are, (1) that the note was usurious, just as the trial court found the other notes she sued on were; and (2) that, if not tainted with usury, it was the individual obligation of Jeannette Hutton, she being the only signer of it, and not the obligation of the partnership of James E. Hutton and Jeannette Hutton. Concerning the first, it appears that, for some time prior to February 1, 1916, Ralph H. Hoitt and Jeannette Hutton, under the trade-name of Empire Mortgage Loan Company, had conducted the business, not as pawnbrokers, but as a straight
‘ The other contention, that the $7,400 was not a partnership obligation, is not sustained by the record. It was alleged that the note was made by Jeannette Hutton for and on behalf of the new firm consisting of herself and James E. Hutton. He commenced as her part
As to the cross-appeal of Julia B. Hoitt from that part of the judgment allowing no recovery on three of the notes held by her, the evidence is clear in favor of the judgment. The money represented by these three notes was furnished to the Huttons by her through her son, Ralph H. Hoitt, partly at the time and partly after the Huttons commenced their partnership, according to the understanding between the Huttons and Ralph H. Hoitt at the time he withdrew from the partnership that he would supply the new firm with money. That agreement, which, as already stated, was in writing, provided as to these advances as follows:
“That in consideration of the party of the first part furnishing the party of the second part with moneys or capital to engage in the Collateral Loan business, the second party hereto hereby agrees to pay as a bonus, from the proceeds of the sale-of unredeemed pledges, an amount equal to Twelve per cent (12%) per annum, on the total amount furnished. Then and thereafter the amount remaining from the said sale shall he divided equally between the parties hereto.”
The three notes, by their terms, provided for the limit of twelve per cent interest per annum, and now this contract made with Ralph H. Hoitt, who the court properly found acted as the agent of his mother, further provides for a bonus to he paid from the proceeds of unredeemed pledges of twelve per cent per annum on the total amount furnished, and still further that all such proceeds above the bonus should he equally
The judgments in favor of interveners Smith, Ryan and Fisehnaller seem to be unquestioned, and, together with the dismissal of the case as to Ralph H. Hoitt, were proper, upon the record.
Judgment affirmed.
Parker, C. J., Tolman, Fullerton, and Bridges, JJ., concur.