42 Neb. 687 | Neb. | 1894
This action was brought on the 16th day of February, 1889, in the Saline county district court to recover twice the amount of usurious interest which plaintiff alleged he had paid defendant, a national bank. There was a trial of the issues to the court, which resulted in a judgment in favor of the plaintiff for the sum of $328.28 and costs. Complaining that this was too small an amount, the plaintiff has filed in this court his petition in error, accompanied by the proper record of the proceedings in the district court, and seeks a reversal of the aforesaid judgment.
The petition upon which trial was had contained seven causes of action. In the brief of plaintiff in error it is said that there are but two questions presented, and that these pertain to the first loan made by the bank to the plaintiff. One of these questions is as to whether the usurious rate complained of was fifteen or eighteen per cent per annum. The other is whether or not plaintiff’s right of action as to this item was fully barred when this suit was begun; that is, whether two years had elapsed from the time the usurious transaction occurred. It is not essential that the first of these questions be decided at this particular time.
In the petition the first cause of action was stated in the following language: “First — The plaintiff alleges that he paid to the defendant the sum of $378 as and for interest on the sum of $3,600 from the 10th day of August, 1886, to the 10th day of March, 1887; said sum of $3,600 being so much money loaned by the defendant to the plaintiff on said 10th day of August, 1886, and by the plaintiff repaid to the said defendant with said interest on the said 10th day of March, 1887.” As to the history of the transaction, L. H. Dennison, cashier of the defendant in error, was sworn and testified as follows:
On the 10th day of August, 1886, Benjamin Smith ap
Q,. That makes a total for the seven months of how much?
A. Three hundred and twenty-four dollars. This transaction run on until the 3d day of June. On the 12th day of March, or on the 11th day of March after banking hours, and it appears on the banking books of the 12th, he paid us $54 interest on the balance unpaid of the original $3,600. It was finally paid on that date, and on that date, namely, the 2d day of June, 1887, he paid us $20.72 interest and took up the note, which was the end of that transaction.
This version of the matter does not agree with that given by the plaintiff in error in his evidence. As the judgment was in favor of the bank on this cause of action, the testimony most favorable to its theory has been set out at length, and from that statement it is evident that while this suit was brought on February 16, 1886, the first payment actually made of interest was on March 11, 1887, and that the balance of the note, principal and interest, was not
In Duncan v. First Nat. Bank of Mt. Pleasant, a case tried in the United States district court at Pittsburgh, Pennsylvania, reported in 1 Thompson, National Bank Cases, 360, Kétcham, J., instructed the jury as follows: “From the origin of the loan, from the retaining of the first discount through all the renewals up to the time of final payment of the principal, or up to the time of entering judgments, there is a locus pcenitentice for the party taking the excessive interest. Any time till then he may consider the excessive interest paid on account of the loan, and so apply it, and lessen the principal. Up to that time he may make this election. When payment is actually made or judgment is entered, the election is made; and if, as in these cases, judgment is entered for the face amount of the notes or full amount of the loan, or payment is taken in full without any reduction by taking out the excessive interest, the cause of action is complete. The original loans in these cases were more than two years before these actions were brought, but the payment of one of the Millinger notes was made, and the judgment on the other Millinger note and the judgments on all the Duncan & Brother notes were entered, near the time of bringing these suits, less than two years before. The payment and the judgment concluded the transaction and determined their character to be usurious. Till that time it was undetermined and the statute did not begin to run.”
In the case of the National Bank of Madison v. Davis,
In Higley v. First Nat. Bank of Beverly, 26 O. St., McIlvaine, J., on pages 79 et seq., made use of the following language in reference to that part of the section of the banking act above referred to: “By the first provision in that
The views above expressed find support in the case of Shinkle v. First Nat. Bank of Ripley, 22 O. St,, 516. We do not concur in all the views expressed in the cases above cited, for some of them have been modified by later adjudications. In so far, however, as they hold that the right to a recovery of twice the amount paid shall be measured by the fact of payment in fact and not constructively, we concur in the principles above announced. Any other rule would recognize the right of the maker of a note to a national bank to recover from such bank twice an amount which lie has not in fact paid, and perhaps may never be able to pay. Not only on principle, but by its own adjudications as well, this court is bound to give to the section hereinbefore referred to the construction which is above
Reversed.