Appellee, State Securities Company, brought this action against appellants Corkle to foreclose liens upon certain chattels created by a note and security agreement dated August 11, 1967, and an additional security agreement. Appellee also prayed for a deficiency judgment. The trial cоurt entered judgment for the appellee.
Appellants assign the following as errors below: (1) The denial of appellants’ request for a jury trial. (2) The failure of the trial court to allow appellants to responsively plead to appellee’s petition which was amended at the close of all evidence to conform to the facts proved. (3) Failure of the appellee to establish the execution of the notes by appellant Blanche Corklе. *580 (4) The amount of the judgment is not supported by the pleadings or evidence. (5) The transaction here involved was usurious. We will discuss these assignments in the order noted above.
Section 25-1104, R. R. S. 1943, establishes a right to jury trial in certain civil matters and states, in pertinent part, as follows: “Issues of fact arising in actions for the recovery of monеy or of specific real or personal property, shall be tried by a jury unless a jury trial is waived . . ..” Appellants argue, on the basis of the above-quoted statute, that the trial court erred in denying their request for jury trial. Appellants cite Cook v. Wilkie,
The mortgage sought to be foreclosed was' given to secure a promissory note executed by the appellants on August 11, 1967. This note was given to extend the payment date of previously outstanding notes from appellants to aрpellee and for additional advances. At trial the appellants requested the earlier notes be pro *581 duced. These notes and business records relating thereto were produced and were the subject of considerable cross-examination by appellants’ counsel. At the close of all evidence the appellee moved, perhaps out of caution, to amend its petition to conform to the evidence. That motion was granted, but appellants’ motion to responsively plead to the amended petition was denied.
Section 25-852, R. R. S. 1943, states in part: “The court may ... in furtherance of justice, and on such terms as may be proper, amend any pleading . . ., when the amendment does not change substantially the claim or defense, by conforming the pleading or рroceeding to the facts proved.” In McCarty v. Morrow,
Appellee’s initial petition alleged that it had a spеcial ownership interest in certain described personalty by virtue of a financing statement and security agreement executed and delivered by appellants Corkle to secure an indebtedness represented by a promissory note. Appellants answered by a general denial, but further alleged that they had “madе payments to the Plaintiff throughout the years,” that “any notes executed are usurious in their interest rates and in excess of that amount of interest allowed or charged by an industrial loan and investment company under and pursuant to the laws of the State of Nebraska,” and that any property mortgaged had died or been dispоsed of with con *582 sent of the appellee. Appellants now assert that appellee failed to show the execution of any of these instruments by Blanсhe Corkle. Appellee counters that both appellants admitted the execution of these instruments by the pleading of material in avoidance of appellee’s petition.
In Nason v. Nason,
The appellants contend the amount of the judgment entеred is incorrect. The prayer of appellee’s petition requests $29,345.82 with interest at $8.20 per day from March 27, 1972. Judgment for appellee was entered effеctive December 1, 1972, for $31,870.18. There appears to have been an error of $482.56 in computing the amount due. The judgment is reduced by that amount.
Finally, appellаnts claim the rate of interest charged by appellee was in excess of that permitted by section 8-435, R. R. S. 1943. That section provided that an industrial loan and investment company may contract for and receive interest on a loan not in excess of 18 percent per year on the first $1,000 and 12 percent per yеar on the balance over $1,000. The controversy here *583 centers around the manner in which the 12 percent simple interest is to be calculated. Appellee computed interest on the basis of a year composed of 12 30-day months, or a 360-day year, in arriving at a daily interest factor. Appellee used а 360-day year, relying upon section 8-441, R. R. S. 1943, which states: “For the purpose of computing charges, ... a month shall be any period of thirty consecutive days, and the ratе of charge for each day shall be one-thirtieth of the monthly rate.” Appellants’ testimony establishes that the daily interest factor achieved by use of a 360-day year, when charged for 365 days, produces a return in excess of 12 percent simple interest. Is such a charge within the contemplation of the statute? We bеlieve that it is. The term “year” in section 8-435, R. R. S. 1943, is not further defined in the statute. However, section 8-441, R. R. S. 1943, requires that the daily interest rate be one-thirtieth of the monthly rate. Since interest computed in accordance with section 8-441, R. R. S. 1943, at 12 percent a year, or 1 percent a month, would divide that monthly rate into thirty equal parts for the purposes of a daily interest figure, one must assume either that the term “year” in section 8-435, R. R. S. 1943, contemplates a 360-day year, or that section 8-441, R. R. S. 1943, could allow, on a 365-day year, interest in excess of the stated maximum. Reading the two sections together, we find that the 360-day method of computing interest used by appellee, under these statutes, was not usurious.
In view of the above holdings it is ordered that the judgment be reduced by the amount of $482.56.
Affirmed as modified.