40 Ind. App. 651 | Ind. Ct. App. | 1907
This was an action by appellant to recover from appellees a sum of money alleged to have been paid by the former to the latter as usurious interest. The complaint is in one paragraph, and alleges, in substance, that appellees were partners; that appellant in August, 1902, while in the employ of the Baltimore & Ohio Railroad Company, borrowed $40 from the Garrett Investment Company, which company took from appellant an assignment of his monthly wages, and exacted and received usurious interest at the rate of ten per cent a month, which he paid until July, 1903; that the usurious interest paid by appellant on account of said loan, and $10 by him paid on the principal, more than paid said principal and legal interest thereon; that said company, instead of surrendering the assignment of wages to appellant, sold and transferred the same to appellees, “who claimed to succeed to the business of the Garrett Investment Company;” that appellees continued to exact and receive assignments of appellant ’s monthly wages to secure said loan, and received $4 a month as interest until March, 1904; “that the defendants, for the month of February, 1904, having such assignment, took out of said money the principal sum of $40 originally loaned, together with interest for said month;” that appellees and their assignors have thus received $70 usurious interest, which they unlawfully hold. This complaint was answered by a general denial. There was a trial by jury, a verdict for defendants, and, over appellant ’s motion for a new trial, judgment was rendered for appellees. The only error assigned is based upon the action of the court in overruling appellant’s-motion for a new trial. The reasons assigned by this motion are (1) that the verdict is not sustained by sufficient evidence; (2) that the verdict is contrary to law. Appellees insist that the judgment should be affirmed because the evidence fails to establish a partnership between appellees.
Judgment reversed, with instructions to the trial court to sustain appellant’s motion for a new trial.