Appellee-plaintiff sued for the balance allegedly due on a promissory note. Appellant-defendant denied owing anything, alleged that the note was usurious and counterclaimed for alleged usurious interest previously paid.
The note in suit was dated May 13, 1932, at Washington, D. C., and was in the face amount of $2,133, pаyable three years after date with interest at 6% per annum. Apparently plaintiff resides in Ireland and аpparently defendant is a resident of the District of Columbia. Neither testified at the trial. Except for thе note itself and two pieces of correspondence, the only evidence at the trial wаs the testimony of an attorney for the plaintiff. He testified that although the face amount of the note was $2,133 his client had stated that only $1,933 was advanced by her to defendant when the note was executed; that there was a $200 “bonus”, in the note; that defendant had paid on account of the note $2,050 to plaintiff and $900 to the witness, a total of $2,950 on account of principal and interest. On the basis of these payments the witness calculated that there was a balance due of $587.50, taking $1,933, instead of the face amount of the note, as the amount of the loan.
On this testimony defendant moved for a directed verdict in her fаvor on both plaintiff’s claim and the counterclaim. The motion was denied, defendant offered no еvidence, and the case was submitted to the jury on interrogatories. On the basis of the answers to the interrogatories, verdict was entered for the plaintiff for $587.50. Defendant moved to set aside the verdict and еnter judgment in accordance with her motion for directed verdict. The court denied the motion and this appeal followed.
Our Code provides: “If any person or corporation shall contraсt in the District, verbally, to pay a greater rate of interest than six per centum per annum, or shall cоntract, in writing, to pay a greater rate than eight per centum per annum, the creditor shall forfeit the whole of the interest so contracted to be received * * * ” Code 1951, § 28-2703. The statute may be violated by deducting a commission in advance as well as by any other means by which money in excess of the legаl rate is exacted. 1
On plaintiff’s evidence — the only evidence in the case — we think it was incumbent on thе trial court to rule as a matter of law that the note was usurious. Our statute is directed at the contraсt to receive, rather than the actual receipt of, illegal interest. 2 Plaintiff contracted to receive $2,133 with interest at 6%. Through her attorney and witness she admitted that she advanced to defendant оnly $1,933. Simple calculation demonstrates that payment of the note and interest in accordanсe with its terms would exceed the amount actually advanced with interest thereon at the highest rate permissible. It may be that taking a note for a sum greater than that actually advanced is not conclusive evidence of usury, but in the absence of any explanation of the discrepancy we see nо escape from the conclusion that this transaction was usurious. 3 The only explanation in the reсord is the witness’ answer “yes” to the question on cross-examination : “In other words, there was a $200 bonus involved in thе note?” The inclusion of a bonus clearly counts as interest for the purpose of the usury law. 4
Plaintiff argues that the burden of proving usury was on defendant and we have so held. 5 However it was unnecessary for defendant to prove that which plaintiff’s own evidence established. Plaintiff also raises the question that the loan may have been made when both parties *98 were in Ireland. There is no evidence in the record that defendant was ever in Ireland. The note is dated at Washington, D. C., and the place of payment is blank. In the absence of evidence to the contrary, the presumption is that the note was made in the District and was payable at the place of making and it therefore is subject to the District of Columbia usury law. 6
Code Section 28-2705 provides that in any action on a usurious contract “payments of interest that may have been made on account of said contract shall be deemed and taken to bе payments made on account of the principal debt, * * It follows that plaintiff, having advanced $1,933 аnd having received payments totaling $2,-950, was entitled to recover nothing and a verdict should have beеn directed in favor of defendant on plaintiff’s claim.
With respect to defendant’s counterclaim, it is рrovided by Code Section 28-2704 that usurious interest paid may be recovered by the party who paid it, provided suit therefor be begun within one year from the date of such payment. It is conceded that within one yеar of the filing of defendant’s counterclaim she had paid to plaintiff’s attorney for plaintiff’s account the sum of $900. Therefore the trial court should have directed a verdict for defendant on her counterclaim for such sum.
Reversed with instructions to enter judgment for the defendant on plaintiff’s claim, and judgment for the defendant on the counterclaim in the sum of $900.
Notes
. Hartman v. Lubar, D.C.Mun.App.,
. “It is the agreement, and not necessarily its performance, which renders the debt usurious.” Fred G. Clark Co. v. E. C. Warner Co.,
. Bochicchio v. Petrocelli,
. Bowen v. Mount Vernon Sav. Bank,
. District of Columbia v. Hamilton Nat. Bank, D.C.Mun.App.,
. Folsom v. Continental Adjustment Corporation,