Buchholz v. Granite Sav. Bank & Trust Co.

• Decision Date: 16 February 1911
• Docket Number: 1004.
• Citation: 261 F. 75
• Parties: BUCHHOLZ v. GRANITE SAV. BANK & TRUST CO.
• Court: U.S. Court of Appeals — Fourth Circuit

261 F. 75

BUCHHOLZ v. GRANITE SAV. BANK & TRUST CO.

No. 1004.

United States Court of Appeals, Fourth Circuit.

February 16, 1911

Certain proceedings in the court below are set forth as follows:

The Court: With regard to the point counsel have submitted this morning, unless there is a statute that is applicable, there is no such thing as usury. Parties have a right to make any bargain they choose, unless they are forbidden by statute. A statute which says you shall not pay more than such a per cent. is a binding statute on all parties, and any contract made has to conform thereto. But it may be provided that a certain class of persons are not to have the benefit of the statute, and if there is any such statute governing the amount of percentage to be charged, so far as that class of persons is concerned, the statute does not apply to that class. Therefore, when it says in New York state no corporation shall plead usury, it wipes out the usury statute so far as that particular class is concerned, so far as corporations are concerned. Does this come before me on demurrer?

Mr Forbes: We demur to their plea.

The Court: Then I sustain the demurrer.

The next point brought before the court was whether or not a jury trial had been waived by counsel for defendant.

The Court: When the case was before me on a previous occasion, it came out in the testimony that Mr. Buchholz was an indorser who had not received formal notice of demand and protest for nonpayment by the indorser.

It is a rule of law and practice that when testimony is adduced, if it appears that the testimony does not support the declaration on which suit was brought, the court should allow an amendment of the declaration so as to conform to plaintiff's proof, if his proof has set up a legal claim. The proof adduced on that occasion tended to show that although there had not been any formal demand or any formal protest for nonpayment by the indorser, yet there were circumstances which tended strongly, in my judgment, to show that Buchholz had waived those formalities, and therefore it was proper, as I thought, that the pleading should be amended, so as to set forth that although there was no formal demand and protest against him as indorser, he had by his conduct, or statements, I have forgotten now how it was exactly brought to the attention of the court, waived those formalities and of that waiver the plaintiffs were entitled to the...