22 Mo. 515 | Mo. | 1856
delivered the opinion of the court.
This is a suit upon a promissory note by plaintiff, as assignee of Ely, against the defendant. There was a trial by jury and verdict for plaintiff, with a special finding that the interest reserved exceeded lawful interest four per cent. The court deducted from the principal of the note a sum equal to four per cent, per annum on the amount of the note, and gave judgment for the plaintiff for the balance of the principal, and then gave judgment against the defendant in favor of the school fund for six per cent, interest per annum, on this balance of principal, and rendered judgment against the plaintiff for costs. The plaintiff excepted to the opinion of the court in rendering the above judgment, and brings the case here by appeal, and ashs for a reversal of this judgment, and for judgment to be rendered in his favor for the principal of the note and interest thereon at ten per cent.; but if this be denied, then for judgment for the principal of the note, less four per cent.
The record is a voluminous one, and full of details of evidence and instructions ; but this court will pay no attention to them, as the only matters complained of rest entirely upon the judgment given by the court on the verdict. The plaintiff did not move for a new trial, and he complains of the 'court in rendering the judgment only.
This case presents questions in regard to a proper construction of the act of 1847 regulating interest. However, before I notice that act, it may be well enough to notice the point raised by the plaintiff’s counsel, that this is no case of usury ; that it is a note given for a deferred payment of an instalment due on the purchase of a tract of land, and is not a borrowing and lending, nor such a transaction as can be considered usurious under our statute. The plaintiff, in his petition, describes the note as bearing date the 16th August, 1847, for the sum of three hundred and seventy-nine dollars and seventy-two cents, payable on or before the first day of November ensuing, with interest on the same at ten per cent, per annum from date,
In an action where usury is found by a jury on defendant’s plea, or by the finding of the court, “ the. court shall render judgment on such verdict or finding for the real sum of money
Upon the whole record, the majority of this court is of the opinion that the judgment below should be affirmed. It is accordingly affirmed;