16 Kan. 326 | Kan. | 1876
The opinion of the court was delivered by
This action was brought in the court below by Hannah M. Walker, as plaintiff. The material facts upon which said Walker’s cause of action is founded, as appears from her petition, are substantially as follows: On November 4th 1872, H. C. Hay (plaintiff in error here) loaned her the sum of $1,000 for the term of one year, at the usurious rate of interest of 54 per cent, per annum, and to evidence said loan, she and W. N. Walker, her husband, executed and delivered to him their promissory note for the sum of $1,540, bearing date on said day, payable to Hay’s order, in one year thereafter, with interest at 12 per cent, per annum after maturity, the sum of $540 thereof representing the usurious interest reserved for the use of said $1,000. Said note was secured by a mortgage on certain real estate in Sedgwick county, executed by defendant in error and her said husband. Long before the maturity of said note, plaintiff in error by indorsement and for a valuable consideration transferred said note to one Hollis Hay, who had no knowledge
We are inclined to think that the court below erred. We think that the petition does not state facts sufficient to constitute a cause of action; that the answer does state facts sufficient to constitute a good defense to the plaintiff’s supposed cause of action; that the demurrer to the petition should have been sustained; that the demurrer to the answer should have been carried back to the petition, and sustained as against it, and not as against the answer. We have no statute in this state making it illegal to contract for usurious interest, or to pay or receive the same. Section 1 of the interest law, as amended, provides that, in the absence of contract, interest at the rate of seven per cent, per annum may be received. (Laws of 1871, p. 250.) Section 2, as amended, provides that the parties may contract for any rate of interest, “Provided, that no person shall recover in any court more than twelve per cent, interest per annum.” (Laws of 1872, p. 284.) Section 3, as amended, provides that, “All payments of money or property made by way of usurious interest, or of inducement to contract for more than twelve per cent, per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and twelve per cent, interest per annum, and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid.” (Laws of 1872, p. 284.) Section 4 of the interest law of 1868 has been repealed; (Laws of 1872, p. 284, § 3.) Section 5 provides that judgment shall draw interest at the rate of seven per cent, per annum, except as otherwise provided; (Gen. Stat. 526.) Section 6 provides that judgments upon contracts shall draw interest at the rate expressed in the contract, not to exceed twelve per cent, per annum; (Gen. Stat. 526.) This is the substance of the interest laws.
There was no failure of consideration. The consideration that the plaintiff received was eminently valuable, and was all that she ever expected to receive. It was all that the parties stipulated for, and all that they ever had in contemplation. There was no deception or fraud, no mistake or misapprehension. Both parties knew exactly what they were doing, and what they were getting, and no disappointment subsequently ensued. And the whole transaction was purely voluntary on the part of the plaintiff. If, instead of giving her note for $1,540 for the one thousand dollars in cash, she had given money or property worth $1,540, we still appre
The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.