102 N.W. 169 | N.D. | 1904
Action to recover a judgment for money paid to the defendant by plaintiff on a usurious contract. The complaint alleges that the defendant loaned plaintiff $265, and that he gave it his note for $315, bearing interest at ten per cent, per annum, and that it was agreed between them that plaintiff should pay twelve per cent, per annum as interest on said sum of $315.70 on April 9, 1903, about thirteen months after the note was given. Plaintiff seeks to recover twice the amount of interest paid on the note, together with twice the $50 paid as bonus. Plaintiff asks judgment for $182.40 — twice the amount paid as interest and bonus. The answer is a general denial. The jury found for the plaintiff for the full .amount claimed. Defendant appeals from the judgment, and assigns as errors: (1) The admission of any evidence under the allegations of the complaint, for the reason that it fails to state that the usurious payment was knowingly' made and received; (2) receiving 'evidence of other and independent usurious transactions between the defendant and other persons; (3) failure to charge the jury that the payment of the usury must have been knowingly made and received; (4) failure to charge the jury that plaintiff could recover only the excess of interest paid over and above the rate allowed by law.
The complaint does not allege expressly that usury was knowingly paid and accepted. It does state that the plaintiff and defendant entered into a contract under which the plaintiff received $265 as a loan from defendant, and that it was agreed between the parties that plaintiff was to pay $50 as a bonus thereon, in addition to twelve per cent, per annum on $315, the amount contracted- to be paid according to the face of the note set forth in the complaint. The sufficiency of the complaint was not attacked by demurrer, but by an objection to the introduction of any evidence under it, made after the first witness was sworn. As against such objection, we have no doubt that it was properly overruled. As against an objection thus made, the complaint must be liberally construed, and it is only where there is a total want of sufficient alie
Evidence was admitted over objection that the defendant was accustomed to take usury, on all loans made by it, and evidence was received to the effect that usury was accepted by defendant on loans other than the one in suit. In case defendant had offered testimony tending to deny the plaintiff’s evidence that the loan in suit was usurious, its admission might have been prejudicial error, but such a case is not before us for consideration. In this case the defendant offered no evidence at all. As we look at the evidence, it would have warranted a direction of a verdict for the plaintiff by the court. Under such circumstances, if error at all, it was error without prejudice to admit this evidence. Donley v. Camp, 58 Am. Dec. 274; Sloan v. Citizens’ National Bank (Neb.) 95 N. W. 480.
The court did not in express words instruct the jury that the usurious payments must have been knowingly made and received before the plaintiff could recover. No such instruction was requested, which is a sufficient reason for denying defendant’s assignment on that ground in this court. The charge, however, in effect, informed the jury that the receiving and giving of usury must be knowingly done, before plaintiff could recover. It- stated that the giving and taking of usury must be pursuant to' a contract that usury payments were intended. Section 4066, Rev. Codes 1899, prescribing under what circumstances and conditions payments of usury can be recovered back by action, was read to the jury. This was amply sufficient, in the absence of a request for a more specific instruction.
Error is also assigned on the charge of the court in respect to the amount recoverable when usurious payments have been accepted. The rule was given to the jury that twice all sums paid as interest
Other assignments made have been duly considered, and found to be without merit.
The judgment is affirmed.