111 Ala. 468 | Ala. | 1895
The circuit court erred in receiving in evidence against plaintiff’s objection the depositions of E. C. Gross, taken on behalf of the plaintiff by John H. Vaught :-nd W. C. Glover, which had been suppressed on the motion of the defendant. The sup
The question of chiefest importance in this case arises on the rulings of the trial court on charges requested, and is whether usury paid can be recovered back in an action of assumpsit, that is, in the absence of a promise to repay or refund it* At common law such recovery was allowed, and in many of. the States, the action is sustained. The ruling, however, at common law, and in these States except when their statutes expressly or impliedly authorize this action, goes upon the theory that a contract to pay usury is illegal and void, and not voidable merely; and the main difference between the statutes in the States referred to and our own, lies in the fact that they either in terms declare, or have been construed and held to declare, such contracts absolutely void, while the statutes of Alabama do not so declaré, but only provide that an usurious contract cannot, when the objection is properly taken to it, be enforced in respect of the usury or interest, but may be as to the principal, and have uniformly been held to render such contracts to that extent voidable at the election of the payor, but not in and of themselves illegal and void. The common law doctrine,and the doctrine administered in those States which allow such recovery, is very ably and clearly stated by the supreme court of New Jersey through Reed, J., in Brown v. McIntosh, 39 N. J. L. 22. The contrary view — that which denies such right of recovery — is maintained by the supreme court of Massachusetts, among others, and is expressly put upon the
Alabama belongs to this latter category of States. Usurious contracts with us are not void. In any event they are perfectly valid and binding so far as the prin
The plaintiff must, therefore, recover, if at all, on the alleged promise of the defendant to repay and refund whatever of usury was included in the payment made by him to the defendant, and the recovery must, of course, be measured by the terms of that promise. We do not understand the alleged agreement to involve the abatement on the part of the defendant of his claim except to the extent that usury should be found to have entered into it. This eliminated, the demand of defendant stood as if no usury had ever entered into it, or been received by him, and the amount of it is to be determined on that hypothesis. In other words, the sum due the defendant at the time of the settlement on acount of principal and interest at the statutory rate is to be arrived at precisely as if no usury had been injected into the amount of the claim on its face. Interest on matured interest is not incident thereto, and is not recoverable as an incident. But an agreement to pay interest on such interest is not unlawful or usurious; especially when made after the maturity of the original principal and interest thereon. — Paulling v. Creagh’s Administra
As the judgment must be reversed for the error pointed out above in the admission of the suppressed deposition of E. C. Gross, we deem it unnecessary to consider the exception reserved to the refusal of the court to grant plaintiff’s motion for a new trial. '
Reversed and remanded.