Clark v. Rodes

• Decision Date: 10 March 1876
• Citation: 75 Ky. 13
• Parties: Clark v. Rodes, & c.
• Court: Kentucky Court of Appeals

75 Ky. 13

Clark v. Rodes, & c.

Court of Appeals of Kentucky.

March 10, 1876

APPEAL FROM BOYLE CIRCUIT COURT.

THOMPSON & THOMPSON, For Appellant.

VANWINKLE & RODES, For Appellees,

CITED

Civil Code, sections 411, 412, 413.

General Statutes, 564.

1 Duvall, 56,Stone v. McConnell.

2 Parsons on Contracts, 285.

3 Atk 503, Welford v. Beazly.

2 M. &amp W. 653, Johnson v. Dodgson.

14 John. 102, Menit v. Claron.

OPINION

LINDSAY JUDGE:

Clifton Rodes, as the assignee of R. M. Graham, held and owned the promissory note of James Clark, due Aug. 1, 1871, for the sum of $2,647.42. Said note bore interest at the rate of six per centum per annum, and its payment was secured by a mortgage on real property.

Rodes sued Clark, and sought to have the mortgaged property subjected to the payment of his debt. On the 5th day of September, 1871, the parties appeared in court, and upon the agreement of Clark the court entered judgment against him for the amount of the note, " with interest thereon at the rate of ten per cent per annum from the 1st day of August 1871, until paid," and decreed a sale of the property embraced by the mortgage.

The judgment contains this recital: " This judgment is entered by agreement and consent of the parties hereto. It is agreed that this judgment is not to be executed or enforced before the 1st day of January, 1872, at which time the plaintiff can execute it in full, provided the debt is not paid in full before that time."

Clark paid $500 on the judgment, and the balance was raised by a sale of the property adjudged to be sold.

Afterward--on the 3d day of August, 1875--Clark sued Rodes and Graham in the same action, and alleged that the note executed to Graham contained usurious interest, and also claimed that all the interest paid under the judgment of Rodes in excess of six per cent per annum was usurious, and he sought a recovery against each of them.

Graham made defense, and relied on the plea of the statute of limitations, and the petition was dismissed as to him; and Clark seeks a reversal on that account.

The agreed judgment of Sept. 5, 1871, was a complete change of the contract by which Clark was theretofore bound, and so far as it affected the rights of Graham was equivalent to the execution by Clark of a new note to Rodes.

The right of Clark to sue and recover from Graham the usurious interest contained in the note arose at that time, and the limitation at once began to run. (Stone v. McConnell, 1 Duvall, 56.) The plea of limitation was properly held to be good, and the judgment in favor of Graham is affirmed.

But the court rendered judgment against Rodes for all the interest collected under his judgment in excess of six per cent per annum; and to reverse that judgment he prosecutes a cross-appeal.

It is not denied that on the 5th of September, 1871, the day upon which the judgment was rendered, Clark might have lawfully bound himself, by written contract properly executed, to pay to Rodes, for further indulgence or forbearance, interest on the debt then due at the rate of ten per cent per annum; but it is insisted, because the 2d section of the conventional interest act provided that " no contract for the payment of a greater rate of interest than six per cent per annum for the loan or forbearance of money shall be binding in law unless a memorandum thereof shall be made in writing and signed by the party chargeable thereon," that the...