Lawrence v. Middle States Loan, Building & Construction Co.

7 App. D.C. 161 | D.C. Cir. | 1895

Mr. Justice Morris

delivered the opinion of the Court:

There are four assignments of error by the appellant, to the effect: 1st. That the case is not one for the application of the seventy-third rule ; 2d. That the plaintiff’s affidavit was insufficient; 3d. That the defendant’s affidavit was sufficient ; and 4th. That the contract was usurious.

1. Under the first assignment it is argued that the suit must be upon the penalty of the bond, and therefore for unliquidated damages ; and that the seventy-third rule, being intended expressly for actions upon contracts, has no application to the present case. But the plain answer to this is that the penalty of the bond and the amount of the indebtedness are the same in this case; and recovery is sought only for the amount of the indebtedness. And even if it were otherwise, and the suit were actually for the recovery of a penalty and in form for unliquidated damages, it is not apparent that it should be defeated on that ground. It is a suit upon a contract; and the seventy-third rule was intended to apply, and by its express terms does apply, to all actions upon contracts. There appears to us no reason why contracts under seal should be excepted from its operation if the exact amount due under them is as capable of being as precisely stated as under a simple contract. In fact, the reverse is rather the rule, inasmuch as, prior even to the enactment of the seventy-third rule, there was statutory provision for the requirement of an affidavit in support of a plea of the general issue in a suit in debt upon a sealed instrument.

2. With regard to the plaintiff’s affidavit, no substantial ground of insufficiency is shown ; and the second assignment of error may be dismissed without further consideration.

3. The sufficiency of the defendant’s affidavit and of the plea of usury which.it was intended to sustain, remains to be considered. The defendant’s affidavit is remarkably vague and unsatisfactory in certain particulars wherein, if the charge of usury were true, it would have been easy to be specific. It does not distinctly and directly aver that there was usuiy in the transaction. The charge of usury is merely argumentative. The statement is that out of the amount of the loan, which was $4,000, the defendant had received only $3,312, “ and that the other money went to the plaintiff.” But this is not enough. The “ other money” might have gone to the plaintiff in a lawful way and for lawful purposes ; and if it did not go to the plaintiff for a lawful purpose, it would have been easy for the defendant so to state, and to say categorically why and for what purpose it did go to the plaintiff. It would be most unjust to infer usury and illegality when our daily experience suggests the possibility of various other explanations, such as the necessity, for instance, for the removal of some pre-existing charge or lien. The defendant’s affidavit in this regard is plainly evasive.

But allowing to the defendant’s affidavit all the force and efficacy which the utmost liberality of construction would entitle it to receive, we find that it raises but the one single substantial issue of usurious interest taken or reserved by the plaintiff at the time of the making of the loan; and this is a defence which, under the decision of the Supreme Court of the United States in the case of Carter v. Carusi, 112 U. S. 478, cannot be sustained or allowed.

In that ease the Supreme Court decided that, under the law in force in this District, when usurious interest has been paid or taken, the sole and exclusive remedy for the borrower is by a suit within twelve months to recover the amount of the usury; and that the usurious interest could not be made the subject of set-off or counter claim, when after the lapse of twelve months suit is instituted for the recovery of the principal claim. This ruling must be regarded as decisive of the appellant’s contention in the present case.

The decision of the court below must therefore be affirmed, with costs. And it is so ordered.