Crow v. Stevenson

• Decision Date: 13 August 1925
• Docket Number: No. 3788.,3788.
• Citation: 274 S.W. 1102
• Parties: CROW et ux. v. STEVENSON et al.
• Court: Missouri Court of Appeals

274 S.W. 1102

CROW et ux. v. STEVENSON et al.

No. 3788.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by George H. Crow and wife against L. C. Stevenson and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

C. M. Edwards, of Malden, and Henry C. Walker, of Kennett, for appellants.

R. J. Smith, of Kennett, and 0. V. Seed, of Campbell, for respondents.

BRADLEY, J.

Plaintiffs sued to recover for alleged usurious interest paid and for attorney's fee. The cause was tried before the court and a jury. Plaintiffs obtained judgment for $1,184.14, which amount included interest and attorney's fee. Failing to get a new trial, defendants appealed.

Plaintiffs, who are husband and wife, allege that on June 20, 1919, they borrowed from defendants $2,500, and as evidence of their indebtedness gave to defendants their promissory note in the sum of $3,333.84, due. 90 days after date; that on August 13, 1919, they paid $500 on said note, and paid the balance October 9, 1919; that the excess over $2,500 was paid as interest; and that said interest so paid was usurious. The answer is a general denial. Defendants assign error on the sufficiency of the evidence, on the instructions, and complaint is also made about certain argument of counsel.

All the parties reside in Malden, Mo. Plaintiff Geo. H. Crow, to whom we have reference herein when we use the term "plaintiff," unless otherwise stated, was in the mercantile business in Malden prior to 1919. He testified in substance and effect that in the early part of 1919 he was threatened with failure and bankruptcy; that he assigned his property to three trustees, one of whom is defendant Stevenson; that he continued to conduct his business, but at the close of each day Stevenson checked up and took the proceeds of the sales, and deposited them in a bank of which Stevenson was cashier; that while the business was being thus conducted plaintiff's mother died, and he received some insurance and inherited a small amount of property; that he owed about $12,000, and that his stock invoiced about $21,000; that he received about $5,000 in insurance, and inherited property, which property he sold; that he obtained from his creditors an agreement to accept 75 cents on the dollar, and when he had gotten together all cash available he lacked $2,500 of having sufficient amount to Pay all his creditors 75 cents on the dollar; that he obtained the $2,500 from the defendants, for which he gave the note mentioned.

The defense clearly appears in an instruction which the court gave of its own motion, as follows:

"The court instructs the jury that, if you find, and believe from the evidence that the plaintiff Geo. H. Crow contracted and agreed with the defendants that they would furnish $2,500 for the payment of $3,333.34 of the indebtedness of plaintiff to his creditors, upon his settlement with them of his debts upon the basis of 75 cents upon the $1, the said defendants should be entitled to the difference between the said $2,500 and $3,333.34 of debts so paid by said sum of $2,500, and if you find that said contract was based upon the profit that plaintiff would make by settling the remainder of his debts at 75 cents on the $1, then your verdict will be for the defendants."

According to defendants' evidence, they enabled plaintiff to save 25 per cent. on about 75 per cent. of all his...