25 Neb. 473 | Neb. | 1889
This cause comes up by appeal from the district court: of Webster county. The plaintiffs in that court, Johm and Kate Wilhelmson filed their petition therein, in which they alleged that, on or about December 11, 1883, the-plaintiff, John Wilhelmson, made and delivered to the defendant, Bentley, a promissory note in the sum of $265;. secured by mortgage on certáin cattle; that of this sumt $50 was usurious interest, computed in advance upon the-true consideration, or sum actually loaned, of $215, and added thereto as part of the principal, the whole drawing-ten per cent interest per annum from date; that afterwards?, on or about March 1, 1884, the plaintiff, John Wilhelm-son, executed and delivered to the- defendant, Bentley, another note for the sum of $775, due six months after date,, with interest at ten per cent from date, and gave a.
That afterwards, on or about the 29th day of September, 1884, both of the plaintiffs gave the defendant, Bentley, two other notes, as renewal only of said last above described note, in the sum of $600 and $150 respectively, each due-April 1, 1885, and gave a mortgage on a lot of cattle to secure the same; that there was not at that time, and had not been received by said plaintiffs, or either of them, any new consideration for said last mentioned notes, but that the same included the balance of the $775 note and additional usurious interest; that said defendant Bentley at the time gave up and surrendered the said note and mortgage of $775; that of these two notes of $600 and $150, the sum of $307.50 only was of the true debt owing by the plaintiffs to the defendant, and that the balance of $442.50 was usurious interest, computed in advance and added to the true debt; that afterwards the plaintiff, John Wilhelmson, made the following payments-to said defendant Bentley on said notes of $600-and $150, to-wit:. October 1, 1884, $11; February 1,'. 1885, $155; and February il, 1885, $84.25; that said payment of $155 paid off and redeemed the said note of $150 and interest; that said payment of $11, so made October 1, 1884, and tho-payment of $84.25, so made February 11, 1885, should' have been endorsed on said note of $600, but were not.
That afterwards, to-wit, on or about the 10th day of March, 1885, plaintiffs had another renewal with the said defendant, Bentley, and then gave said Bentley six other
The defendants are about to sell, assign, and transfer said five notes and the mortgage given to secure the same to an.innocent purchaser for value without notice, in order to and for the purpose of-preventing the plaintiffs from setting up usury as a defense to the enforced collection of the same; and that the defendants are about to enforce a collection of said five notes by having said mortgage foreclosed on the property covered thereby, and that if defendants are not restrained from selling, negotiating, and transferring said notes and mortgage, and restrained front the collection of the same, the plaintiffs will suffer great and irreparable injury; that plaintiffs have more than paid defendant Bentley the consideration for which said five notes were given, and $52.75 over, and that the whole of the said five notes is usury, and that plaintiffs are without remedy at law. With prayer for an injunction, for judgment, and for general relief.
A temporary injunction was allowed as prayed.
Each of the defendants demurred to the petition, separately as to himself, on the ground that it did not state facts sufficient to constitute a cause of action against him, which were by the court overruled.
Thereupon the defendant Potter made answer to the said petition, that as to the $600 note mentioned in said petition, that he, said answering defendant, on the 3d day of March, before the said note became due, in the usual course of business, for a good and valuable consideration, to-wit, for five hundred and eighty dollars then given and paid by said defendant to defendant Bentley, purchased said note of and from said defendant Bentley, and
. That on the 10th day of March, 1885, and at divers, limes thereafter before the 30th day of April, the plaintiff, •John 'Wilhelmson, told, this defendant that he, plaintiff, bad on said date made the six notes described in his petition as made of that date for the consideration of six lmn■dred and sixty-five dollars, then borroAved by said Wil•helmson of said Bentley and received by said'plaintiff, and that there Avas no usurious consideration in or usurious
There was a trial to the court, and findings and judg-. ment as follows : “The court finds for the plaintiffs as to, the two first notes of one hundred and ten dollars each.. First payable May 10, 1885, and second payable June 10, 1885, and that the same be canceled, and the balance of notes, amounting to $335, hold valid, but without interest, and injunction be dissolved as to them, and that plaintiffs pay all the costs of this suit. It is therefore ordered, adjudged, and decreed that the injunction issued in this cause restraining and enjoining said defendants from selling, negotiating, transferring, or otherwise disposing of said two first notes for one hundred and ten dollars each, the
Both parties appealed to this court.
There was, as shown' by the bill of exceptions, a large, amount of testimony, much of which is conflicting. But it pretty clearly establishes the fact that, in 1883 plaintiff John-Wilhelmson bought of défendánt Bentley two separate lots of cattle on credit, Bentley taking separate notes therefor; that in each of said notes there was, in consideration of such credit, added 'a certain sum as bonus or premium, and each note called for ten per cent interest fro hr date; that there were sundry payments made on these notes and renewals thereof, and at each time the renewal note was made to represent and contain, in addition to the amount represented in and by the canceled note and legal interest thereon, a sum in addition thereto as a bonus or premium for such renewal and additional indulgence. On 'the 29th day of September 1884, the said indebtedness was renewed by the said John Wilhelmson and his wife— ■the plaintiffs — giving the said Bentley two notes, one for six hundred dollars and one for one hundred and fifty dollars. The last named note was soon afterwards paid in full and taken up. The note for six hundred dollars matured March 10, 1885. John Wilhelmson testified, when on the stand as a witness on the part of the plaintiffs, that, on the 11th day of February, 1885, he paid Bentley $84.25 to apply on the six hundred dollar note, and then told Bentley that lie had paid enough; there were high words between them; that he, Wilhelmson, was advised by
The parties, Bentley, Potter, and Wilhelmson, then, on the 10th day of March, 1885, met at the house of the latter, and the plaintiffs executed and delivered to Bentley six notes, payable to him, five of which were for $110 each, payable on the 10th days of April, May,. June, July, and August, respectively, and one for $115, payable on the 10th day of September following, and gave a mortgage to secure the same on.the cattle covered by the previous mortgages,, and also on certain horses, farming implements, and other property not covered by other mortgages. The plaintiffs and other witnesses present at this transaction testified that these notes ■ and mortgage were = given: in renewal of the $600 note, and that said note was then and there given up by Bentley or Potter to John Wilhelmson, while Potter and Bentley testified that the six hundred dollar note was not there at the time, but that it was agreed that Bentley was to pay Potter the amount of said note the next day, but that Potter was not to give the note up to Bentley, but to retain and afterwards deliver it to Wilhelmson, which Potter testified that he afterwards did. The plaintiffs also testified that while this transaction was-taking place Wilhelmson repeatedly declared that the con
The case of Farwell v. Meyers, 35 Ill., 40, was in most respects similar to the one at bar, the principal distinction! being that there had been a judgment rendered on a cognovit against one Zimmerman and Farwell, the latter-being security. Farwell brought his bill in equity, and had an injunction against the judgment, claiming that the holders of the note had released him by giving time to his principal without his consent, and claiming that certain-payments of usurious interest should be credited on the-judgment. He failed in his proof of the extension of' time to Zimmerman, and the superior court dismissed the bill. On error to the supreme court the judgment of the superior court was reversed. The court, in the opinion, say: “Although usurious interest voluntarily paid since the passage of the act of 1857 cannot be recovered back, still, so long as any part of the debt remains unpaid, the debtor may insist upon a deduction of the usury therefrom. The usury received is considered as having been extorted by means of the debt, and is to be applied in part payment of the same.” See also N. E. M. S. Co. v. Aughe, 12 Neb., 504, cited by counsel for defendant Potter, and cases there-cited. I think in a case where there are outstanding notes-against a party, a great part of which represents usurious interest on former evidences of debt which have been renewed, and such usurious interest made to represent principal, and there is reason to fear that the holder of the-notes will, instead of bringing suit on such notes, transfer them to other parties before maturity, the debtor may take the initiative and proceed in the nature of equity and by
The district court found that two of the notes enjoined, amounting to the sum of two hundred and twenty dollars, represented usurious interest. I cannot say that it was without sufficient evidence before it to justify and sustain such finding.
The judgment of the district court is affirmed, and as both parties appealed to this court, the costs here will be ■divided equally between them.
Judgment accordingly.