29 Ind. 601 | Ind. | 1868
This was an action by Wheeler, as assignee, on a promissory note, against Paihburn, the maker. The note was for $500, payable three years after date, with interest payable annually, and was dated February 8,1864. The second paragraph of the defendant’s answer alleges, in substance, that thirty dollars of usurious interest was included in said note, besides which he executed to Pollard, the payee thereof, two other promissory notes, amounting in the aggregate to ninety dollars, which he subsequently paid, the only consideration therefor being unlawful and usurious interest to accrue on the note sued on, after its date. For which several sums a credit is claimed on said note. Issue was joined on the answer, and by agreement of the parties was submitted to the court for trial. The court found for the jilaintiff the sum of $585 75, for which amount judgment was rendered.
A bill of exceptions shows that, at the request of the defendant, the court found the facts specially, and stated the conclusions of law arising therefrom. The special finding, so far as it relates to the question presented to this court, is as follows: ' That the note was given by Paihburn to the payee thereof for $470, loaned by the latter to the former, and that there was thirty dollars usurious interest included in the face of the note, to make it $500; that about the 15th of May, 1865, the defendant paid the sum of sixty dollars, thirty dollars of 'yvhich was'paid as usurious interest
Having thus disposed of the preliminary question, we return to the question presented by the appellant. Did the court err in the conclusion of law from the facts presented by the special finding? The act of 1861, under which the note in this suit was given, and the payment of the thirty dollars in May, 1865, made, fixed the rate of interest at six per cent, per annum, and declared all interest contracted for, reserved, or received, in excess of that rate to be usurious; but, in all such cases, authorized the recovery of interest at the rate of six per centum per annum. It also provided, that “if a greater rate of interest than six dollars a year for one hundred dollars shall have been paid,” on any contract, “whether in advance or not, judgment shall be rendered only for the amount of principal, deducting the excess of interest thus paid, at the time paid.” Acts 1861, p. 138. But in 1865, at the special session of that year, section 5 of the act of 1861 was amended so as. to read as follows: “If a greater rate of interest than is-hereinbefore allowed ” (6 per cent.) “ shall be contracted for, the contract shall not therefore be void, but if, in any action on such contract, proof be made that interest at a rate exceeding six dollars a year on one hundred dollars has been directly or indirectly contracted for, the plaintiff shall recover only his principal with six per cent, interest, and he shall
In 1867, the legislature passed another act on the subject, the first section of which fixes the legal rate of interest at six per cent., when not otherwise contracted for in writing, and when so contracted for, it cannot exceed the rate of ten per cent.; but it may be taken yearly or for any shorter period in advance.
“ Sec. 2. All interest exceeding the rate of ten per cent-um per annum shall be deemed usurious and illegal, as to the excess only, and in any action upon a contract affected by such usury, such excess may be recouped by the defendant, whenever it has been reserved or paid before the bringing of the suit.” Acts 1867 p. 151.
This act was in force when the present suit was instituted, and we agree with the appellant’s counsel in the opinion that the decision of the case must be governed by it. Redman v. Deputy, 26 Ind. 338. And we think the Common Pleas erred in refusing to take into consideration the payments in May 1865, and July 1866, for the purpose of ascertaining the amount due on the note, or in determining whether it was in fact usurious under the statute, as well as in supposing that the usurious interest, if any, could not be recouped because of the provision in the act of 1865. But nevertheless we cannot reverse the judgment, for the reason that it is not for a greater amount than was actually due on the note, under the statute of 1867.
The appellant’s counsel is in error in supposing that the payments referred to should be deducted from the principal of the note, or the whole amount credited upon the six per cent, interest which the note drew from date. Those payments were made for interest over and above the six per cent-
for a loan of $500 for three years, with interest at the rate of twelve per cent, per annum. The note was executed for the sum loaned, with interest at the rate of six per cent, payable annually; at the same time, the payee retained thirty dollars of the sum loaned, being six per cent, thereon for one year, in advance, and the appellant executed his notes for sixty dollars, payable at a future time, which, with the thirty dollars retained from the loan, made six per cent., interest for the three years the note had to run. This, under the statute of 1867, would make two per cent, of usurious interest for three years, which, if paid, might be recouped. Adopting this rule, and it will appear by calculation, that the judgment of the court is for a less sum than was actually due on the note. The appellant has nothing therefore of which to complain. He was not injured by the finding of the court, and the judgment must be affirmed.
The judgment is affirmed, with five per cent, damages and costs.