*1 SCHLATTMAN, Lamora M. as Administra of the Estate of William H. Schlatt
trix man, Deceased, Appellant (Defendant be low), Harold C. S Dozer Serv STONE & S d/b/a Appellee Service, ice and Stone’s Water (Plaintiff below).
No. 4197. Supreme Court
July 13, 1973.
Rex Arney Redle, O. Yonkee & Ar- ney, Sheridan, appellant. Watt, Gillette,
Tim for appellee.
Before J.,C. and McEWAN McIntyre, jj. McINTYRE, Justice. disputing case. Without
This side on either facts the trial court facts to be Accordingly, it findings. can be as- its that: sumed Stone, Plaintiff, conducted Harold C. during H. business with W.. The nature Schlattman’s lifetime. .of take in- that Stone would business was assign them voices to Schlattman of the invoice and Schlattman face percent or pay either 94 would then percent of the face amount the in- then direct Stone would voice. paid voices to be to Schlattman. Stone was to face amount of invoice which was not days. debtor within invoices assignment. varying after times The court charges assigned to on invoices Schlatt- man, during amount $77,282.70, whereas interest at the *2 per Although subsequently repealed, would amount to percent seven rate of brought plaintiff tinent at the time given to statutes $13,750.50. Judgment was only 13-482, difference, in action 13-476 and W. his were for a Stone miscalculated §§ S.1957, original act both a of same $63,712.20. administratrix amount of The specified adopted 13-476 1895. Section appealed. has any interest which that rate of Although trial court that stated exceeding per agreed upon, percent ten plaintiff charges on invoices annum, section be valid. That did shall $77,282.70 attempt made amount of no was specify penalty when result or actually called that Stone was show charged. 13- was Section interest of face amount Schlattman plaintiff At 482 did however. assigned the record any invoice. suit, read: brought this section by shows, actually made payments of interest than is any “If length of time respective debtors. The contracted shall be allowed of varied. hereinbefore by taken the debtors course received, reserved, contract for or or is that took theory Plaintiff’s if void; if he but shall not only days days, ten or even then therefore proof be any action on such very high Schlattman received been di- illegal made that interest has judgment terest. Proof was made and rectly indirectly or contracted rendered on that basis. taken, reserved, plaintiff shall Because the have not addressed inter- principal, question themselves to the of whether the est, and the defendant shall recover contract between Schlattman Stone costs; any shall have interest was one for loans where interest was thereon, judgment been shall be for charged and where Stone paid; principal, deducting involved, could be will be assumed ” * * * [Emphasis supplied.] purposes of this and without so deciding that is the case. 13-482, as it at the time Section action, did agree, dis- Counsel on both sides and the type has of affirmative relief Stone found, plaintiff trict court so that has no sought. merely prevented the The section any cause of action under of the statutes recovering he lender from interest when re- sought of our state. Plaintiff has The lend- sued to recover on contract. theory cover on has a com- he permitted principal, er was to recover the mon-law so and the trial court already paid. It was less strictly theory. rendered pressly provided that Therefore, opinion is confined this than that allowed greater rate of interest question re- narrow of whether can be void. reason alleged by him cover usurious interest reason of the common indicated, attorney previously Stone’s 13-482 was recognizes that the effect of § preceding paragraph. common as adopts the Our statute which Hence, he agrees It he admits England W.S.1957. statutes expressly that such common law cause of action states argues in this state rule of decision there- are concurrent remedies with the laws and common-law “when inconsistent pays person is whether the and a who question The of.” afforded independently of remedies ap- may, sought is inconsistent an action for maintain in other plicable Wyoming, or statutes of received, That as at common law. rule of under the words is not abrogated by so. statute? person pays then the who question is not whether such interest may, independently of the afford- expressly abolished the common-law statutes, an action for mo- usury. maintain question of decision on received, ney had and whether the common law. substance of our statutes such that the be regarded statutes must Flannery In more recent *3 superseding abrogating and the which Bishop, 778, 81 504 Wash.2d P.2d existed at common law.1 supreme the court of principle has taken the position Inasmuch as our statutes deal announced its 1913 decision Lee subject with the extensively and a princi- long-established legal Hillman is a remedy legislature apparently ple Washington. in the state of It reasons sufficient, considered it is difficult repeals that courts do not favor of settled argue view, point from a commonsense principles implication and enactment superseded that statutes have not and abro of a statute will not be to over- gated the common law. stated in re In long-established legal turn principles unless Estate, Wyo. Roberts’ 58 clearly is made to appear such intention 500, if a subject statute covers the whole impli- express by necessary declarations or matter, the abrogation of the common law Thus, Washington cation. court rea- subject necessarily the same im be pertaining legislation sons plied. abrogated remedy has not the common-law support In theory, appellee of his relies of an action and received. primarily They on two are cases. Dennis jurisdiction, Washington’s In Lee D.C.Colo., Bradbury, 236 683 long-established created (1964); Hillman, Lee 74 Wash. Also, legal principle we for us. (1913). 133 583 P. heretofore not now In the Dennis the federal district “express leg idea that declarations” judge expressly remedy stated that necessary islature are which existed may at common law be abro previously indicated, common law. In gated superseded by (236 statute F. Estate, re Wyo. Roberts’ 58 P.2d Supp. p. 689). recognized the test of 492, 500, proposition stands for the legislature whether or not the has declared matter, subject whole cover the the usurious contract to be void abrogation of the common law will neces that, statute, Colorado’s sarily implied.2 legislature Wy be is void the extent of usurious oming sub has indeed covered the whole (p. 692). That opinion can be of concerned, ject matter is help Wyoming to us because ex and there common- is no reason believe that, pressly declared if a contract calls law still exist. at a percent, than ten it for that reason be There can be no doubt about
It is true general that the court in the of the rule stated Lee case correctness (133 13, 59, that, p. P. at 586) position took the 15A Common Law taking where statutes forbid the effect that the common obtains exces- statute, punish sive interest changed by and statutes violation the when fines, penalties forfeitures, infliction of precedence take where there incon- sively dealing subject 1. See Dennis v. to which F.Supp. 683, related. purports be a revi- where statute Am.Jur.2d, 16, p. subject, In 15 Law Common all com- sion whole may provision said, legislature “The su- law of which mon persede the an in the revision was declara- included press by adop- tory thereby abrogated.” effect, directive to that system comprehen- tion of a of statutes necessarily implied; subject must the unwritten conflict sistency or weight of case law Thurman, Ariz. Campbell v. Wilson, theory. The contrary v.Wax P.2d court needs to be judgment of district 54, 57. Fla.App., So.2d reversed. of in- if a it is When the fact that Chief In view of by law is contract- that allowed terest than are concur- Parker and McEwan to recover sue me, as indi- ring in result reached rate, the effect paid over opinions, the case separate cated their inor in whole say the tois Otherwise, how is: and void.3 is null Wyoming justified? Reversed. says the contract however, clearly *4 inconsistency in (concurring Chief Justice the stat- and in result). the com- apparent utory declaration agree I that the of the trial superseded. mon law'is However, court cannot I stand. does not follow authority weight principle upon reach consideration reasoning adopted by Judge Nclntyre base deci- which would For Flannery cases. the Lee sion. Instead I find total lack court of New Mexi- supreme court example, in this instance. It is 290, 31 P.2d 38 N.M. co, Lopez, elementary v. not be Jaffa only” stat- asserting “voidable upon party dealt burden is Washington and to the one prove similar that it Anderson v. ute exists. 696; Hill- Curls, Lee v. Wyoming. It cited Mo.App., one in 309 S.W.2d it, Neb., follow refused to specifically Company, Hansen v. Commonwealth man recovery stand 901; could holding Usury instead that 115 N.W.2d § 114; Usury the statute. Interest and Am.Jur.2d 350. making a statute In states extent to some voidable right of recov- void, a common-law but not McEWAN, (concurring has been disallowed by the borrower ery result). Beeler, Kan. Marshall cases: these agree concur in the result and I Ala. 245; Coffey, 111 Gross 178 P. McIntyre usury existed under 428; 32 Neb. Blain v. Willson 468, 20 So. not, particular I do facts of this case. 224; v. Northland Seldin 49 N.W. however, think that under the 175, 202 Neb. Company, Mortgage precluded from borrower Com- Nelsen 174; Dailey v. A. C. N.W.2d maintaining an action for 881, 136 N.W.2d pany, Neb. Jaffa paid all if he had usurious interest even 988. N.M. Lopez, 38 my principal Since interest. it is clear From what has did have a cause the borrower not have a common-law plaintiff does subject to he was action under the statute him already paid by limitations, one-year statute of statutes in existence against have run would since the statute brought his action covered him he not recover. subject matter of usurious inter- the whole GUTHRIE, J., participating. law on
est Dennis v.