166 Mo. App. 342 | Mo. Ct. App. | 1912
(after stating the facts). — In order to entitle a borrower to recover usurious interest there must have been an actual payment of the usury. The fact that the borrower gives his note therefor will not entitle him to recover as for usurious interest paid. [29 Am. and Eng. Ency. Law (2 Ed.), p. 546.] A cause of action to recover on the ground of usury does not accrue until the usurious interest is actually paid. [Webb on Usury, see. 466; Anderson v. Trimble, 18 Ky. Law Rep. 507, 37 S. W. 71.] And not only must the amount charged as usurious interest or some portion thereof have actually been paid, but the money actually borrowed with lawful interest must also have been paid before any amount can be recovered tas usury. It is only when the total amount actually paid exceeds the principal and lawful interest that anything can be recovered as usury and then only the amount of such excess.. If the principal and legal interest remains unpaid no action to recover usury‘will be entertained. [Tyler on Usury, p. 422; Webb on Usury, sec. 466; Hawkins v. Welch, 8 Mo. 490; Kearney v. First Natl. Bank, 129 Pa. St. 577; Chaplin v. Currier, 49 Vt. 48; Kendall v. Davis, 55 Ark. 318, 18 S. W. 185.] In this state it had been held
It is evident from the foregoing statement of the law that plaintiff’s petition is framed upon an erroneous theory, for it makes no allegation beyond the fact that the plaintiff secured a loan of $3000 from the defendant and that defendant “retained as compensation for the loan of said sum, the sum of five hundred dollars ($500), in violation of the statute in such cases made and provided.” There is no allegation or suggestion that plaintiff or any one for her repaid any portion of the loan to the defendant. Indeed it is quite clear that plaintiff’s counsel had no such idea in framing the petition. However, if we were concerned merely with the petition — that is, if the evidence had disclosed a case entitling plaintiff to recover and the court had not misdirected the jury as to the law, we might look upon the petition with that charity which the law indulges in favor' of proceedings originating before a justice of the peace, and hold it sufficient, at least after verdict.. But when the trial court came to instructing the jury as to the law of the case we find that it adopted the same theory upon which plaintiff had framed her petition, for at the instance of the plaintiff it told the jury in effect that all plaintiff need prove in order to recover was that the defendant made her a loan of $3000 and retained out of the sum loaned $500 as compensation for-the loan. It impliedly eliminated the necessity of a finding that plaintiff had actually made payment as we have discussed, and thereby committed error.
Moreover, the demurrer to the evidence raised another question. While the evidence tends to prove that the notes were paid, there is not a scintilla of evidence tending to prove when they were paid. The rule is, that when payment is shown to have been
And we are of the opinion that the point that the suit was prematurely brought was properly and sufficiently raised and preserved by offering an instruction in the nature of a demurrer to the evidence and excepting to its refusal. In Freimuth v. Rupp, supra, only a memorandum opinion was published, but by resorting to the original opinion on file we find that this court held that as the evidence disclosed the fact under discussion here it was error to refuse an instruction in the nature of a demurrer to the evidence. In Tobin v. McCann, supra, the court reversed the judgment and dismissed the cause though the point that the suit was prematurely brought does not appear to have been suggested except- by the offering of an instruction in the nature of a demurrer to the evidence. Werth v. City of Springfield, supra, was tried upon an agreed statement of facts. The judgment was reversed and the cause remanded because the suit was prematurely brought although that fact appears to have been developed only by the evidence and the only errors assigned were the refusal of instructions which were substantially demurrers to the evidence, and the finding of the court against the defendant upon insufficient evidence. In Duryee v. Turner, supra, the fact that the suit was prematurely brought was disclosed by the evidence and this court reversed the judgment and dismissed the suit upon the defendant’s exception to the judgment for want of evidence to support it,
For the error aforesaid in giving plaintiff’s instruction to the jury, and in refusing defendant’s demurrer to the evidence, the judgment is reversed and the cause remanded.