79 Ind. App. 192 | Ind. Ct. App. | 1923
On August 9,1914, appellee borrowed $500 of appellant, and, as evidence of the debt, executed and delivered to appellant his promissory note payable one day after date with interest at eight per cent, per annum after maturity. At the time the note was executed, the parties entered into a contemporaneous collateral agreement by the terms of which appellee was to pay the principal of the note in ten weekly installments of $50 each, and to pay $5.50 per week as interest. Appellee made the weekly payments as agreed, and at the expiration of the ten weeks’ period, borrowed another $500 executing his note as before, which note was to be paid, and which was paid, in ten weekly installments of principal and interest, in like manner as he had paid the first. This process was repeated at intervals of ten weeks for a period of five years, or until twenty-six such notes had been executed and paid; the total amount of interest paid on the series of notes being $1,430. On August 9, 1919, appellee executed and delivered to appellant the note in suit, which, like each of the previous twsnty-six notes was for $500, due and payable one day after date, with interest at eight per cent, per annum after maturity. This note like the others was executed in accordance with a similar contemporaneous agreement as to payment and interest. After the payment of the first installment of principal and interest in the sum of $55.50, appellee failed and refused to make further payments, and appellant, claiming that there was a balance of $450 due on the note, commenced this action to collect the same. To the complaint appellee filed answer in denial and á special answer averring the facts as to the previous twenty-six notes, their payment with usurious interest, and that, when the note sued on was
A trial by the court resulted in a judgment for appellee in the sum of $600.
The one question involved in this appeal is whether or not in the action by appellant on the note of August 9, 1919, appellee in a cross-action, in the nature of the set-off, can recover the usurious interest paid by bim on the twenty-six notes executed and paid" prior to August 9, 1919. It is contended by appellant that the cross-action cannot be maintained for the reason that the note sued on is not a renewal, but represents an independent transaction; the previous notes having been fully paid and settled before its execution.
Except the act of 1917, “to license and regulate the business of making loans of $300 or less” (Acts 1917 p. 401, §8277i et seq. Burns’ Supp. 1921), there is in this state no statute authorizing con
Appellant’s action, in the case at bar, being for a “money demand on contract,” it was, under §93 of the Code of Civil Procedure, proper for appellee to. plead as a set-off any claim he had against appellant consisting “of matter arising out of debt, duty, or contract, liquidated or not” held by appellee “at the time the suit was commenced,” and “had matured at or before the time it is offered as a set-off.” §353 Burns 1914, §348 R. S. 1881. That appellee’s claim for the return of the usurious interest is a matter arising out of a “duty” on the part of appellant within the meaning of §93 of the Code, supra, is not controverted. Unlike the pleading of a counterclaim, a set-off may embrace matter which is not germane to the main action, and which constitutes an independent cause of action. Wain
It follows that, in the action commenced by appellant, appellee by way of set-off may recover the usurious interest he had paid to appellant on the previous independent transactions. In addition to Baum v. Thoms, supra, at pages 388, 389, see Zeigler v. Scott (1851), 10 Ga. 389, 54 Am. Dec. 395.
The facts, as shown by the evidence, are not in dispute, and, under the issues, the judgment should have been for an amount equal to the usurious interest paid, less the balance due on the note in suit, on the day judgment was rendered, and is but a matter of calculation. The judgment of $600 rendered by the trial court is more than $300 less than it should have been. Appellee, however, did not move for a new trial, and is asking for an affirmance of the judgment.
Affirmed.