81 N.C. 142 | N.C. | 1879
On the 8th of August, 1871, A. J. Jones drew a bill for $400, payable at sixty days on T. J. Jones, who accepted to pay the same, and after endorsement thereof by T. S. Lutterloh, all for accommodation to the drawer,. A. J. Jones procured A. W. Steel & Oo. to discount the same at the rate of eighteen per centum per annum, or one and a half per cent per month for the time it had to run.
Afterwards Lutterloh, with his co-defendant as surety, executed his note to A. W. Steel & Co. as a substitute for the-original bill drawn by A. J. Jones, and while in their hands several times renewed it at the same rate of interest, and' finally it was negotiated to the plaintiff who had notice of the usurious rate of interest on which it had been discounted and renewed as aforesaid.
On getting into the plaintiff’s hands the statement in the-complaint is, that it was from time to time renewed, how often not specified, at the same usurious rate, until the 4th of March, 1875, when just before the going into effect of the act of 1874-75, ch. 84, the note, on which the action is brought for $335, was executed.
The defendants allege that since the debt was originally-made, in the whole' round of renewals to A. W. Steel & Co. whilst they were owners, and since then to the plaintiff, there have been paid sums of money for interest making an aggregate of $321.60 of which only the sum of $35 has been applied to extinguish, any part of the principal money, and' in their defence they make a counter-claim or set-off against the plaintiff for the various sums of interest paid before the execution of the note sued on in this action.
To the counter-claim the plaintiff demurred, on the" ground that the sums constituting the same are not such as’ could be the subject matter of an independent action, having been paid willingly and with a full knowledge of all the facts, and on the hearing His Honor sustained the demurrer and from that judgment the appeal is taken.
Under such state of the law in England it was much disputed whether the excess of interest paid beyond the legal rate could be recovered back in a common law action, on the ground that the receipt and payment of it contrary to the statute was a delidum and therein the borrower was equally participant with the lender; but at length it was settled that a distinction was to be taken between statutes passed to protect the weak and necessitous from being overreached and oppressed, and those enacted from motives of policy,and general expediency, in the former of which the parties were held as not equally criminal, hut in the latter, in pari delicto. Comyn on Usury, 5 Law Lib., 211; Clark v. Shee, 1 Cowper, 197; Browning v. Morris, 2 Cowper, 790.
Under this distinction the court held that in gaming contracts and the like, prohibited by statute, the thing prohibited was done from public policy and general expediency; .and so, if parties paid anything under such contracts they did so in equal fault and could not have remedy to get it hack on the maxim volenti non fit injuria. But in the case of contracts prohibited by the statute against usury, it was to be taken that the borrower in the transaction was not
2. Conformable to this state of the English law was our statute law and the right of parties prior to 1866; and up to that time, the borrower was regarded as under necessity taking away his freedom, and not of equal guilt with the lender. Accordingly it was provided that the usurious contract should be void and the whole amount forfeited, and the lender be subject to pay double the whole amount if he received the usurious excess, in a qui tam action. Rev. Code, ch. 114.
By the act of 1866-66, ch. 24, the legislature giving expression to the popular will on this subject, repealed the 114th chapter of the Rev. Code and in lieu thereof enacted in substance that six per cent should be the legal rate of interest, with liberty to stipulate on a loan of money but on no other consideration, for a rate so high as eight per cent, provided the rate and consideration were expressed in the obligation, with a declaration of validity to the contract under any circumstances as to the principal money lent, and without any forfeiture except of the entire interest on plea of the borrower, in case of an agreement to take more than six per cent where no rate was named, or more than eight where the rate is named.
Obviously by this enactment a new theory was introduced, and now the view obtained, that money like an article of property or merchandise ought to be regulated by the market, and the borrower be at liberty to pay for the loan of money on his own estimate of advantage and benefit to himself therefrom, without interference of law further than to fix a rate beyond which interest should not be recoverable in the courts, and to provide a defence .against its collec
From these terms of the statute, the statutory remedy provided for the borrower extends merely to the defeat of the interest on the note or obligation unpaid, and does not embrace any remedy as to the interest already paid -r and it seems to us that in the view of the legislature the borrower was no longer to be regarded as under such necessity as to take away his free will, but as being competent to act freely, and that, therefore, if he paid what he need not have paid, he Should be barred by his act, and not have remedy to re-' cover it back on the ground of his having paid it willingly and freely. If it was intended that the usurious excess paid should be recovered back, why was not a remedy therefor furnished as in the old law, Rev. Code, ch. 114, and as provided for in a remedy prescribed for the recovery of double the amount of interest so paid in the act of 1876-77, ch. 91?,
3. This our construction of the act of 1865-’66, as' to the non-existence of a remedy to recover usurious interest paid, derives support and confirmation in our view from the course and terms of the legislature on this subject since: The act of 1874-75, ch. 84, re-enacts the invalidity of all contracts tainted with usury on plea of the borrower and a forfeiture of double the amount lent to any one who will sue
4. Applying these views, let us see what is the result: The answer avers the loan originally to have been $400 and interest paid in renewals to A. W. Steel and Co., and since, to the plaintiff, in all amounting to $321.60, which was applied to the interest, and the overplus to the principal, so that on the day the note now in suit was given, the principal was reduced from $400 to $355 ; and it then shows forth that the present note was executed on the 4th of March, 1875, in the interval between the passage of the act of 1874-75 and the day named for its going into effect; and the demurrer admitting these facts, in point of law, the conclusion is, that payment of interest having been made freely and willingly, and located and applied to the interest as such, and in the settlement with the plaintiff again recognized as payments on the interest, and in small part on the principal .at the giving of the note now sued on, the defendants have not the right to recover therefor and be allowed the same by way of counter-claim and set-off against the plaintiff’s demand.
We therefore hold that His Honor was not in error in sustaining the demurrer and holding that defendants were not entitled to a counter-claim or set-off for usurious interest paid anterior to the execution of the note in suit under the act of 1865-66.
No error. Affirmed.