Cowgill v. Jones
| Decision Date | 06 April 1903 |
| Citation | 73 S.W. 995,99 Mo.App. 390 |
| Parties | JAMES COWGILL, Appellant v. WILLIAM C. JONES et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Henry Circuit Court.--Hon. W. W. Graves, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Arthur F. Smith, C. C. Dickinson and Frank Hagerman for appellant.
(1) Usury was not properly pleaded. (2) Final judgment should be here entered for plaintiff. (3) The law of Kansas, by which this transaction should be governed, provides that interest shall not be charged in excess of ten per cent per annum. If more than that is charged the party charging it shall forfeit the excess, and it shall be deducted from the principal. The Kansas statute does not provide for forfeiting the costs. The action of the court, therefore, in taxing the costs against the plaintiff was unwarranted by law.
W. E Owen and Peyton A. Parks, for respondents.
(1) The taking of more for the use of money than the law allows is usury. Davis v. Garr, 55 Am. Dec. 392, note citing Tyler on Usury, page 35. Usury is the taking, under contract of more than lawful interest for the loan or forbearance of money. Webb on Usury, sec. 1; Wilkes v. Roosevelt, 3 Johns. 207; 27 Am. and Eng. Ency. Law (1 Ed.), page 918; R S. 1899, sec. 3708; sec. 3484, Code of Kansas. (2) The taking, or reserving, knowingly and voluntarily, a greater interest or compensation for a loan than is allowed by law is, per se, usurious. Davis v. Garr, 55 Am. Dec. page 392, note citing Fielder v. Darrin, 50 N.Y. 437; 27 Am. and Eng. Ency. Law (1 Ed.), page 926, and authorities cited under note 2. (3) If there is not a complete abandonment of the usurious contract, the infection of usury will remain. Webb on Usury, sec. 485; Neal v. Rouse, 93 Ky. 151; s. c. 19 S.W. 171; Webb on Usury, sec. 311, 308 and 309; 27 Am. and Eng. Ency. Law (1 Ed.), page 964 et seq., and authorities there cited. Adams v. Moody, 91 Mo.App. 41; Lemser v. Fur. Co., 70 Mo.App. 218, and authorities there cited; Buck v. Railway, 46 Mo.App. 555.
--This is a suit to recover $ 418.87 alleged balance due on the following promissory note executed by defendants, to-wit:
On the back of said note were the following credits:
The defendant, Jones, by his separate answer, admitted the execution of the note, and that it became due May 10, 1900, and for a defense and counter claim to the same he alleged that said note was secured by his chattel mortgage upon 130 head of cattle, of even date with the same; that on or about the 20th day of February, 1900, he shipped said cattle to the plaintiff for the purpose of paying off said note, with directions for the manner in which he was to sell the same; that the plaintiff disobeyed said directions, which resulted in a loss to defendant of $ 1,000; and for which he says he was damaged in that amount. For a second defense, he alleges that prior to the shipment of said cattle to the plaintiff, the latter agreed with him that he would give him a rebate of all the unearned interest and part of the commission for making the sale of said cattle; and that under said agreement he is entitled, in addition to the sum of $ 25 credited on said note as a rebate on the same, to the further sum of $ 113 for said unearned interest. For a further defense he alleges that the remainder of said note--to-wit, $ 204.10--exceeds the legal rate of interest of ten per cent. The other defendants, who were the securities of defendant Jones, in substance adopt his answer.
The evidence disclosed, that defendants lived in the vicinity of Windsor, Missouri; that defendant West was the owner of 130 head of cattle which defendant Jones was desirous of buying on credit; that the price of $ 28 per head was agreed upon between them as the value of the same; that the plaintiff, who was engaged in the commission business at the stock yards in Kansas City, Kansas, was requested to advance the money to Jones in order that he might be enabled to make the purchase; that plaintiff agreed to advance the money upon condition that defendant Jones, in addition to giving a mortgage upon the cattle, would further secure the money to be so advanced by giving defendants West and Bernethy as securities on the note; and that defendants having so agreed, plaintiff prepared the note in question and the mortgage and sent them to defendants. Both the note and mortgage were signed and returned to plaintiff at his place of business in Kansas City, Kansas. When the plaintiff sent the note and mortgage to defendant Jones it was accompanied by the following statement, to-wit:
Price
Amount
130
cost
$ 28
$ 3,640 00
commission
interest
156 10
Rev. S., etc.
2 50
Total
$ 3,846 60"
It was shown that said statement contained the items that constituted the consideration for the note. There was evidence tending to prove defendant's counterclaim, and that plaintiff agreed to give or obtain a rebate of unearned interest on the note. Plaintiff Cowgill testified that it was one of the rules of the Live Stock Exchange, of which he was a member, for the commission man who advanced money to a purchaser of cattle, to charge a commission, and rules to that effect were offered in evidence but excluded. The statutes of Kansas regulating interest were also in evidence. The jury returned a verdict for the plaintiff in the sum of $ 258.50; whereupon the court adjudged him to pay the costs. The plaintiff appealed.
The court instructed the jury that the contract in suit was a Kansas contract, and that they should take $ 3,642.50 as the principal of the note, instead of $ 3,846.60, the amount named, compute interest on the same at six per cent from date to the 21st day of February, 1900; from the amount thus obtained deduct $ 3,402.75, the amount realized from the sale of the cattle, and from the balance found, compute interest from said lastnamed date at the same rate of interest until the date of trial. The jury were also instructed upon the issue raised by defendant...
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