181 Ga. 297 | Ga. | 1935
Logan B-. Dixon and Minnie Dixon brought a suit in equity against Nash Loan Company, Family Finance Company, and Edward S. Lipscomb. In view of the alleged relation between these two companies and of Lipscomb as an agent of the latter, these companies will, for the sake of brevity, be treated as identical and referred to as one. The term defendant will mean the principal defendant, unless the context should show otherwise. The petition alleged that the defendant was a corporation engaged in the lending of money under the small-loan act (6a. L. 1920, p. 215), under which companies duly licensed were permitted to charge interest at the rate of 3-1/2 per cent, per month. The plaintiffs had borrowed money from the defendant on several occasions, securing the loans by a bill of sale to “all of petitioners’ personal property.” The plaintiffs alleged that the defendant had violated the law under which it was licensed to do business, by the compounding of interest contrary to the provisions of section 13, and that as a result of such violation each loan was void and the note and bill of sale were unenforceable. The defendant is claiming a balance of $110.50 against the plaintiffs, which the plaintiffs have refused to pay because of the facts stated above as to the invalidity of such loans, but the defendant through its agent Lipscomb continues to demand payment and to harass and annoy the plaintiffs, as stated in their petition. The plaintiffs have paid to the defendants the total sum of $372.79, in separately stated amounts, on principal and interest, which should be repaid to them by reason of the invalidity of the loans in question. The plaintiffs prayed for injunction, cancellation, and judgment for the total amount paid to the defendant. The court overruled a general demurrer, and the defendants excepted.
The acts against which the plaintiffs sought injunction were thus stated in the petition: Lipscomb, who is employed by the defendant company, is trained and instructed to dun, harass, annoy, and embarrass borrowers who are delinquent in their payments. The said agent has for the past two months continuously “called” upon petitioners, requesting, that they “call” upon the manager of the
Section 13 of the act of August 17, 1920 (Ga. L. 1920, pp. 215, 219), provides: “Every person, copartnership, and corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of three hundred dollars ($300), and may charge, contract for, and receive thereon interest at a rate not to exceed three and one-half (3 1/2) per centum per month. Interest shall not be payable in advance or compounded, and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or other charge, or amount whatsoever for any examination, service, brokerage, commission or other thing, or otherwise, shall be directly or indirectly charged, contracted for, or received, except the lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. If interest or charges in excess of those permitted by this act shall be charged, contracted for, or received, the contract of loan shall be null and void, and the licensee shall have no right to collect or receive any principal, interest, or charges whatsoever. No person shall owe any licensee, as such, at any time more than three hundred dollars ($300) for principal.” Under this statute interest may not be compounded or computed on anything other than unpaid balances of principal. Lanier v. Consolidated Loan & Finance Co., 47 Ga. App. 148 (170 S. E. 99). A violation of the
Since the allegations were sufficient to show that the loans made to the plaintiffs were void, the lender had no right to demand payment or to persist in sending its agent to the plaintiffs’ home or to the place where the plaintiff Logan B. Dixon was employed, with the view of inducing the plaintiffs to settle the claim, after they had disclaimed liability and requested the defendants to desist from such practices. In the circumstances, the repeated visits to the plaintiffs’ home amounted to a continuing trespass, to prevent which an injunction may be granted. In. such case it is unnecessary to show that the defendant is insolvent or that the damages would be irreparable. Durrence v. Groover, 160 Ga. 680 (129 S. E. 29), and cit.; Burns v. Hale, 162 Ga. 336 (3) (133 S. E. 857). It has been held in some cases that an employer may have injunction to prevent a third person from interfering with the work of his employee; and it would seem that the right of the employee to such relief would rest upon equally as sound a footing, where the intrusion was in violation of a rule of the employer, and if continued would likely result in the employee’s discharge. If a property right is necessary to sustain equity jurisdiction, such right sufficiently appeared in the present case. See Jones v. Van Winkle Gin &c. Works, 131 Ga. 336 (2) (62 S. E. 236, 17 L. R. A. (N. S.) 848, 127 Am. St. R. 235); Kinney v. Scarbrough Co., 138 Ga. 77 (3) (74 S. E. 772, 40 L. R. A. (N. S.) 473); Culpepper v. Cunningham, 139 Ga. 88 (2) (76 S. E. 750); Blanton v. Blanton, 163 Ga. 361, 364 (136 S. E. 141). So far as the petition sought an injunction against the conduct of the lender’s agent, it stated a cause of action.
While there is some authority to the contrary (see Family Loan Co. v. Hickerson, 168 Tenn. 36, 73 S. W. (2d) 694, 94 A. L. R. 664), under the controlling decisions in this State the rulings made above should not be different because the plaintiffs did not tender the principal amount of the loans with lawful interest. In Davis v. Atlanta Finance Co., 160 Ga. 784 (129 S. E. 51), it was held that the general rule as to tender does not apply in a case like the present, for the reason that the act of 1920 prohibits the collection of any part of the principal or interest, and
If the petition had stood solely upon the allegations and prayers in reference to cancellation, it might possibly have been subject to dismissal upon the ground that the plaintiffs had an adequate remedy at law. Cf. Calhoun v. Davis, 163 Ga. 760 (137 S. E. 236); American Security Co. v. Sealey, 173 Ga. 754 (161 S. E. 253); Straub v. First Mutual B. & L. Asso., 178 Ga. 672 (173 S. E. 714). But see Jones v. Equitable Loan Co., 179 Ga. 228 (175 S. E. 554). Equity, however, will strive always to do complete justice; and since the petition stated enough for injunction, the plaintiffs could, by proper allegations and prayers, include a claim for cancellation of the bill - of sale. As to this subject, the petition was not defective because it did not- appear that the instrument had been recorded. On this phase of the case, the petition was not an action quia timet to cancel a cloud upon the plaintiffs’ title, but was- the equivalent of a suit to cancel a contract upon the ground of fraud. In the latter class of cases, whether or not in the former, it is not essential to the maintenance of the action that the contract shall have been recorded. City of Atlanta v. Jones, 135 Ga. 376 (5) (69 S. E. 571); Americus Railway & Light Co. v. Americus, 136 Ga. 25 (4) (70 S. E. 578); Elliott v. Marshall, 179 Ga. 639 (176 S. E. 770).
No question of limitation has been raised. If the claim is not barred, the plaintiffs may recover such sums as were paid on forfeited interest; that is to say, all charges for interest would be forfeited by the violation of the statute, and sums paid there.on could be recovered. “Such payment does not fall within the ordi
Judgment affirmed.