73 So. 477 | Ala. | 1916
Plaintiff (appellee) sued defendant to recover a part of certain payment of money made by plaintiff to defendant in satisfaction of two promissory notes evidencing plaintiff’s, indebtedness to defendant. Plaintiff’s version of the case was. that he paid the amount claimed by defendant at the time to rid his property of mortgages securing the notes and upon defendant’s express promise that, if it were found upon further investigation that he had paid too much, he (defendant) would pay the overplus back to plaintiff, and that the amount so paid had been swollen by the inclusion of both usurious and compound interest, as plaintiff afterwards learned the fact to be. At the trial it was not disputed that interest of both questionable sorts had been included in the sum paid by plaintiff to defendant; but, so far as usury is concerned, plaintiff confessed that he knew he was being charged with usurious interest and the rate at which it was charged, nor had he complained of usury. In so far, then, as the sum paid has included usury, the court instructed the jury that the plaintiff could not recover.—Gross v. Coffey, 111 Ala. 468, 20 South. 428. This left for determination defendant’s disputed liability for the compound interest paid and its amount..
(3, 4) Defendant had charged and collected compound interest. He had no right to do this in the absence of an agreement, express or implied, that interest should be compounded. According to plaintiff’s testimony, he did not know at the time that he was paying compound interest on his debts in order to get a settlement, though he thought he was paying too much. His reasons or excuses for not knowing were for consideration by the jury. Charge 2, given at the request of plaintiff, did not deal with the general burden of proof, nor did it predicate a result in the cause. It dealt with the burden of proof in respect of the issue raised by defendant’s contention that there had been no mistake in the payment of compound interest for the reason (alleged) that plaintiff had agreed to pay such interest. Without such promise defendant had no right in the first place to exact interest upon interest. The suit was really one to recover on an express promise to repay any money paid by mistake; but the fact of mistake did not conclude the case in favor of plaintiff, for it was necessary, besides, that he makes it appear, not only that the amount paid to defendant included interest upon interest, but that defendant had promised to repay any such interest, and as to both these last-mentioned facts the burden of proof was upon the plaintiff.
(5) Considering plaintiff’s testimony to the effect that he knew all along that he was being charged with interest at 10 per cent., and that at the settlement he made no objection on that account to the amount claimed by defendant, which contained interest correctly calculated on that basis, defendant’s promise to repay if it should be found that plaintiff was paying “too much” should be interpreted, so far as interest is concerned, as a promise only to repay any interest upon interest that may have been included in the sum paid by plaintiff to defendant. This appears to have been the view taken by the court in its general oral charge to the jury. But the court did not adhere to this view when it refused the general charge as to count seven of the complaint requested by defendant. As we understand the evidence,
As we read the case, the undisputed evidence was to the effect that defendant did not promise to make good or repay the usury plaintiff paid with his eyes open and without promise on the part of defendant, or expectation on the part of plaintiff, that it would be repaid. The charge should have been given.
(6) We cannot say there was error in the refusal of charge A requested by defendant. It is not easy to understand just how in all respects plaintiff intended his testimony should be understood. As we read him, he claimed and testified in effect that he was not chargeable with some of the items that went to make up the consideration of the note for $499.76. Defendant seemed to testify that it was made up in part of the price of goods bought on credit. Plaintiff denied that he had bought any goods on credit. If defendant erroneously included such items in the amount collected from plaintiff and promised to make good any mistake, plaintiff was entitled to judgment for such items without regard to the issue between the parties as to compound interest. The charge was therefore refused without error.
As the judgment will be reversed on the ground indicated, it is unnecessary to consider the exceptions reserved on the refusal of the court to grant plaintiff’s motion for a new trial. We suggest only that the verdict failed to express any consistent theory of the facts in the cause.
Reversed and remanded.
