32 Ga. App. 60 | Ga. Ct. App. | 1924
(After stating the foregoing facts.) In this' court' counsel for both parties, by their briefs, treat the case as one coming within the provisions of the act of 1920 (Ga. L. 1920,
The suit being an action of trover, it was essential that the plaintiff show title in himself to the property in controversy. It was to this end that he introduced the bill of sale in evidence. If valid and enforceable, it was sufficient for this purpose. Watts v. Wight Investment Co., 25 Ga. App. 291 (103 S. E. 184). The defendants attack this bill of sale, contending that it is null and void, under the provisions' of the small-loan act of 1920, to which the writing itself refers. They attack it not for anything that appears on its face, but because the plaintiff collected interest in excess of the maximum rate of 3% per cent, per month allowed by that act. Section 13 of the act provides: “Every person, co-partnership and corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300) and may charge, contract for and receive thereon interest at a rate not to exceed three and one half (3%) per centum per month. Interest shall not be payable in advance or compounded, and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge or amount whatsoever, for any examination, service, brokerage, commission or other thing, or otherwise, shall be directly or indirectly charged, contracted for or received, except the lawful fees, if any, actually, and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If any interest or charges in excess of those permitted by this act shall be charged, contracted for or received, the contract of loan shall be null and void and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever.” By section 17 of the act it is declared that “no loan for which a greater rate of interest or
In authorizing an interest charge nf 3y% per cent, per month that statute deals not with days, but with months; and the word “month,” as therein used, means a calendar month, whether the particular month for which the interest is to be computed happens to consist of 28, 29, 30, or 31 days. Civil Code (1910), §5; 1 Words & Phrases (2d series), 552. It appears, from the uncontradicted evidence, that the plaintiff repeatedly collected monthly installments of interest in excess of 3% Per cent, per month; in fact, that, notwithstanding the terms of the contract and of the statute, he intentionally disregarded calendar months in all his computations of interest, endeavoring only to compute it at the rate of 3% per cent, per month for the actual number of days between payments. He undertakes to excuse as bona fide errors of computation all excessive charges of interest appearing, from that method of calculation. In view of the emphatic and unambiguous provision -of the statute that “no further or other charge or amount whatsoever, for any . . thing, or otherwise, shall be directly or indirectly charged, contracted for or received,” the principle announced in Patton v. Bank of LaFayette, 124 Ga. 965 (4) (53 S. E. 664, 5 L. R. A. 592), is not here applicable,' nor do even bona fide errors of calculation seem to afford a sufficient excuse for such overcharges. Especially is this so under the peculiar facts of this case, where there was no necessity whatever for computing interest for the fractional part of a month, and where the plaintiff still retains the benefits of his admitted errors and does not appear to have ever made any effort to restore or account for the sums thus wrongfully taken. Nor is it any excuse to say that the amount of usury thus taken was small. As for that matter, the principal debt itself was small, and could in no event exceed the sum of $300. But from the date ¿/the loan, December 19, 1921, to the date of the first interest payment, January 19, 1922, was exactly one month of 31 days. Three and a half per cent, interest on the principal debt of $204 for that month was $7.14. The amount of interest collected was $7.38, or an excess of 24 cents. Small as that may seem, a similar excessive charge for each month during the twelve months period involved would amount to more than one per cent, per annum on the entire prin
The question then is: What effect, if any, do such overcharges have on the bill of sale as evidence of plaintiff’s alleged title ? The small-loan act of 1920 allows of but one answer. While it allows to lenders of small sums who comply with its provisions the unusual privilege of charging and collecting interest thereon at the rate of 3% per cent, per month, or 42 per cent, per annum, where other persons are allowed only 8 per cent, per annum, it also provides the unusual penalty of forfeiture of both principal and interest for one who undertakes to do business under its provisions and who, in any manner whatsoever, contracts for or receives, either directly or indirectly, any thing whatsoever in excess of its provisions for money thus loaned. In the language of the act: “If any interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void, and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever.” It necessarily follows that the plaintiff was not entitled to recover.
Aside from such excessive charges of interest, does the plaintiff show any right to charge or collect interest even at the rate of 3% Per cent. Per month in accordance with the provisions of the small-loan act of 1920? From section 1 of that act it emphatically appears that the privilege of charging such a high rate of interest is allowed only to those who are bonded and licensed in accordance with the subsequent sections of the act. In this case the plaintiff failed to show that he was such a licensee. Proof of that fact, if it is a fact, was necessary to bring him within the prospective provisions of the act and establish his right to the rate of interest claimed by him; in short, it was essential to his case, since the payments as made amount to more than enough to cover the principal debt and interest thereon at the rate of 8 per cent, per annum.
The act as a whole is unusually free from ambiguities; and, as was said by Judge Nisbet in the opinion in Neal v. Moultrie, 12
Judgment reversed.