61 Minn. 490 | Minn. | 1895
The allegations of the first count or cause of action of the plaintiffs’ complaint, so far as here material, are substantially
1. Upon the trial the defendants duly raised the question that the first count of the complaint did not state a cause of action, and duly objected to the reception of any evidence in support of it, which objection was overruled, and an exception duly taken. Do the allegations of the first count of the complaint constitute a cause of action? This question depends upon the construction to be given to G. S. 1894, § 2214, which reads as follows: “* * *~ In any case, however, where the original holder of an usurious note sells the same to an innocent purchaser, the maker of said note, or his representatives, shall have the right to recover back from the said original holder the amount of principal and interest paid by him on said note.” It is admitted by the plaintiffs that their first cause of action is predicated on this section of the statute, and that they must bring themselves within its terms, or their alleged cause of action fails.
The question principally discussed on the argument of the appeal, as to the construction of this statute, was whether or not the plaintiffs are makers of the note, within the meaning of the statute. We are of the opinion that the words “maker” and “note,” as used in this statute, include the maker of a guaranty of payment of a promissory note indorsed thereon, where he has been obliged to pay a usurious note by reason of the guarantied note having been sold to an innocent purchaser; hence, if the allegations of the complaint show that the note in question was sold to an innocent purchaser, then they state a cause of action. This brings us to the question, does the complaint show that the Dubuque National Bank was an innocent purchaser of the note in question, within the meaning of this statute ?
If the plaintiffs might have successfully interposed the defense of usury, if it existed, when sued by the Dubuque National Bank on the note and guaranty in question, then it is clear that they cannot maintain this action. It is to be observed that it is not alleged in the complaint that such bank recovered judgment against the plaintiffs because it was a bona fide indorsee or bearer of the note, whereby they were deprived of their defense of usury. If it had done so, and the other allegations of the complaint showed that the bank was not, and could not have been, such bona fide purchaser, the latter allegations would control. Now, it is perfectly clear that the bank was not such innocent purchaser of the note, for it was itself the payee of the note, which was payable to it or its order, and it could not be a bona fide indorsee or bearer thereof. If it had no interest in the note until it purchased the same from the defendants, then it took title to the note by assignment, as
2. The allegations of the second count or cause of action of the ■plaintiffs’ complaint constitute a cause of action; but both the first and second causes of action were submitted to the jury, and there was a general verdict for the plaintiffs, and it is impossible to say whether the verdict was based upon both causes of action, or upon the first one or the second one. Therefore the order appealed from must be reversed, and a new trial granted.
So ordered.