Cortner v. BennettCortner v. Bennett
Gеorge V. Cortner, appellant and plaintiff below, filed suit in the Circuit Court of Lauderdale County against James Bennett, Jr., defendant and apрellee here, seeking the recovery of $440 balance due on a promissory note. He alleged that on March 19, 1953, he loaned Bennett the sum of $600, at four per cent interest for a period of six months. Bennett was given credit for a payment on said note of $150 on Mаrch 26, 1954, and was later given an additional credit of $10.00. No further payments were made and this suit was filed.
Appellee Bennett in his answer admitted signing the note in question but alleged that he signed the note in blank and that he only borrowed the sum of $500; that he signed the note in blank and received the $500 and trusted the appellant Cortner to fill in the note for the
The facts, briefly stated, are as follows: The appellant Oortner testified that the appellee asked him to loan him $500; that he agreed to make the loan; that Avhen he Avent to the hank to get the money, the appelleе asked him to make the loan $600; that he acceded to his request and that the appellee Bennett, at the. time he loaned him the $600, filled in the note for said amount and signed same at the hank; that he Avrote in the four per cent interest charge. The appellee testified that $500 Avas all he borrowed from the appellant; that they Avent to the bank as testified to by the appellant, but he denied that he wrote in the. sum of $600; that the appellant asked him for a note; that he signed it in blank and Avhen the appellant gave him the $500, he handed him the note and that he did not knoAV the note Avas filled in for $600 until he had made the payment of $150 on March 26, 1954. On this conflicting evidence, it Avas a question for thе jury to determine whether the amount loaned Avas $500 or $600. The jury found for the ap
The appellant argues a number of assignments, contending that the lower court erred in permitting the case to go to the jury on the ground that the appellant and the appellee both testified that there was no agreemеnt or contract to pay $600 for a loan of $500, and that the note did not violate the statute. Section 36, Mississippi Code of 1942, is as follows:
“Thе legal rate of interest on all notes, accounts and contracts shall be six per cent per annum; but contracts may be madе, in writing, for a payment of a rate of interest as great as eight per centum per annum. And if a greater rate of interest than eight per centum shall he stipulated for or received in any case, all interest shall be forfeited, and may be recovered hack, whethеr the contract he executed or executory. If a rate of interest is contracted for or received, directly or indireсtly, greater than twenty per centum per annum, the principal and all interest shall be forfeited, and any amount paid on such contrаct may be recovered by suit.” (Emphasis ours)
Since the jury found that the appellee only borrowed the sum of $500, then according to all the proоf, he received only a $60 credit on the note when he should have received a credit of $160, which would have made a balance due of $340 instead of $440. Thus the jury found that the appellant by filling in the note for $600 exacted $100 which was charged as interest and was greater than twеnty per cent per annum. The question as to whether the appellant intentionally charged the appellee the $100 as interest was presented to the jury for its determination.
The appellant further contends that since the note was not usurious at its inception, thе court erred in refusing the requested peremptory instruction and later in overruling motion for a new trial on the ground.that the contract сould not be usurious, citing the case of
“To constitute usury, there must be аn intent to commit the act which results in the exáction of a usurious charge. When such act is the result of mistake or misapprehension, this necessary element is lacking.”
This statement is not applicable to the case at bar as the appellant testified that Bennett fillеd in the note for $600 and that he loaned him that amount.
In Hardin v. Grenada Bank,
The. fact that the appellant and the appellee did not contract, or stipulate fоr a greater rate of interest than twenty per cent does not prevent the. note from being usurious if the appellant received directly or indirectly a greater rate of interest than twenty per cent per annum.
“In no event, could the rule contended for be applied to the case at bar, for the reason that it comes within the condemnation of that provision of the statute which deсlares that the principal of the indebtedness shall be forfeited when more than twenty percent interest is received directly or indirеctly. To hold that the principal of the indebtedness was unaffected by the subsequent usurious exaction of interest, at a rate, of twenty рer cent per annum, for the. reason that the contract, was not usurious at its inception, would emasculate the statute. It- is true that thе contract here involved was not usurious at its inception, but, when the creditor subsequently received, indirectly, more than twenty per cеnt per annum interest, it conferred upon the debtor the right, to declare all the principal forfeited, and to recover hack all payments made on the prinicipal, as
We have examined the other assignments of error and find them to be without merit. The verdict of the jury was supported by ample evidence and the judgment is affirmed.
Affirmed.