90 S.E. 519 | N.C. | 1916
Plaintiff sued, under Revisal, sec. 1951, for $80, double the amount of usurious interest paid by him to defendant. He alleged and testified that he wanted to buy a Ford car for $530, and, not having the money to pay for it, he applied to the defendant for a loan of the amount, and he agreed to lend him the money upon a mortgage of the automobile and a lot. When asked by plaintiff what he would charge for the money, defendant replied that "he could not turn so small a deal for less than 20 per cent, and plaintiff, after stating that it was too much, agreed to take the money," defendant putting up $530 in order to get plaintiff a machine costing $530 and charging him $616 the difference between the $530 that the Ford car cost and the $616 being for the use of the money. Plaintiff further said that the car was sold to him outright by the Ford company, though the bill of sale was made to the defendant, this being done, as plaintiff contended, to cover up the real transaction as being a usurious one, as defendant was only to advance the money (517) for the car, and told the Ford agent "that plaintiff wanted a car, and to let him have it." Plaintiff drove the car from the garage and kept possession of it.
Defendant alleged and testified that he bought the car from the Ford agency and gave his note of $530 for it, and paid it a short time afterwards. That he sold the car to plaintiff for $636, and there was no loan, but a straight-out sale, and he never told Monk that he would have to charge 20 per cent on so small a deal, but the true agreement was that he should buy the car from the Ford agency and then sell it to Monk. He testified that as plaintiff gave him a mortgage for only $616, he asked for the balance of $20 and plaintiff paid it to him, making $636 in all, the price of the car, and that the $20 was not a payment on the debt, as plaintiff contends.
Plaintiff further testified that the $20 was for the use of the money, and that defendant so stated at the time it was paid to him, and added that he would not give a receipt for it.
It was admitted that defendant received $50 from the Ford agencies, which was a bonus or premium paid to owners of their cars during that year. Plaintiff testified that Goldstein did not tell him about this, but kept the money.
Defendant also admitted that $570 had been paid on the debt, that is, $40 more than plaintiff contended was due, as principal on the debt.
There was much evidence on both sides as to the usury, plaintiff's tending to show that there was a loan and that he had paid $40 more than the legal interest, and defendant's that there was simply a sale of the car, and no loan. *568
The jury found that there was a loan and that plaintiff had paid $40 as usurious interest. Judgment was entered upon the verdict for $80 and cost. Defendant appealed. The only exception was to the charge of the court, which will be noticed hereafter.
The text of usury is that there should be a contract for the forbearance of an existing indebtedness or a loan of money. Struthersv. Drexel,
The jury, of course, must be satisfied by a clear preponderance of proof that the debtor has paid more than the legal rate of interest, and that the creditor received it as usury, or with the knowledge (519) that it was usury, or, in other words, with the wrongful intent to violate the law by taking an excessive amount for the use of his money.Bennett v. Best,
The charge was scrupulously fair and impartial, and, judged by every test of the law, it complied fully with the requirement of the statute as to instructing juries.
No error.
Cited: Loan Co. v. Yokley,