149 S.W. 43 (Mo.App. 1912), Lawler v. Vette

Citation:149 S.W. 43, 166 Mo.App. 342
Opinion Judge:CAULFIELD, J.
Party Name:ISABELLA M. LAWLER, Respondent, v. JOHN H. VETTE, Appellant
Attorney:Geo. W. Lubke and Geo. W. Lubke, Jr. for appellant. L. Frank Ottofy for respondent.
Judge Panel:CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.
Case Date:July 02, 1912
Court:Court of Appeals of Missouri
 
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Page 43

149 S.W. 43 (Mo.App. 1912)

166 Mo.App. 342

ISABELLA M. LAWLER, Respondent,

v.

JOHN H. VETTE, Appellant

Court of Appeals of Missouri, St. Louis

July 2, 1912

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow, Judge.

REVERSED AND REMANDED.

STATEMENT.--Suit to recover from defendant a sum of money alleged to have been usuriously retained by him as compensation for a loan. The plaintiff had verdict and judgment for $ 555, being the amount of the usurious interest with interest thereon from the time of the commencement of this suit. The petition alleges, in substance, that on October , 1907, plaintiff secured a loan of $ 3000 from the defendant on certain real estate; though defendant was entitled only to the legal rate of interest thereon, six per cent, he "without her consent, retained as compensation for the loan of said sum, the sum of five hundred dollars ($ 500) in violation of the statute in such cases made and provided." That is, in substance, all the petition alleges or suggests. There is no allegation or suggestion that plaintiff or any one for her repaid any portion of the loan to defendant or actually paid any interest, either lawful or usurious. The case having originated before a justice of the peace, there was no pleading on the part of the defendant. The case was commenced in the justice court on May 24, 1909. It was tried anew in the circuit court before a jury on March 21, 1911.

Viewed in the most favorable light for plaintiff, as we must view it on this appeal, the verdict being in her favor, the evidence tends to prove that in October, 1907, the plaintiff owned a row of flats in the city of St. Louis, which were in charge of Woolley & Fish, her real estate agents. The property was encumbered by a deed of trust for $ 12,000 which was being advertised for sale in foreclosure. She authorized Woolley & Fish to make a loan of $ 3000 for her. Mr. Woolley saw the defendant, a money lender, and disclosed to him his desire to make the loan on the property. The defendant went to look at the property and informed Woolley that he would give $ 2500 for the plaintiff's notes for $ 3000. Woolley then reported to plaintiff what defendant had said and had her execute forty notes for seventy-five dollars each, aggregating $ 3000 in amount, and a second deed of trust securing them. At the trial plaintiff offered all of said notes in evidence. The abstract described them as follows: "The one of these first maturing is in words and figures as follows:

"$ 75.00. St. Louis, Mo. , September 28, 1907.

"One month after date I promise to pay to the order of Edwin S. Fish seventy-five dollars, for value received, negotiable and payable without defalcation and discount and with interest from date at the rate of six per cent per annum.

"ISABELLA M. LAWLER.

"Indorsed: Without recourse on me.

"EDWIN S. FISH.

"The other thirty-nine notes are identical with the one above set out with the exception of the time of maturity, which is respectively two months to forty months after date. All said notes are marked paid."

She testified that when she executed these notes she knew that the money was coming from the defendant. The notes were made payable to Fish, one of her agents, and were indorsed by him without recourse. The notes and deed of trust were delivered to the defendant and he made his check payable to Woolley & Fish for $ 2500. The check was cashed and plaintiff received the amount thereof. She testified that she did not know about the charge for the loan until in November when she received a letter from Woolley & Fish stating that they had charged $ 600 commission. Both of the agents testified, however, that they had fully advised her in that respect before closing the deal with defendant. The evidence on behalf of the defendant tended to prove that, in the ordinary course of business, he purchased the notes from Woolley & Fish, believing that they were the owners, and made no loan to the plaintiff and had no dealings with her or with any one acting for her. That the notes had been made out before Woolley & Fish tried to sell them to any one and that they had offered them to several persons before they came to defendant, but no one would take them because of the large first deed of trust. The only evidence, other than the fact that the notes, when introduced in evidence, were marked paid, tending to show payments on the notes, the times of such payments and the person making them, consisted in the following testimony of the plaintiff herself, elicited by counsel for defendant on her cross-examination: "After I got the money I paid seven of the notes of seventy-five dollars each, the first seven, as many as I had to pay until the property was sold. After I paid the first seven notes I sold the property. I paid these seven notes as they became due. None of the notes was past due when I sold the property. I am...

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