Farrell v. Kirkwood

• Decision Date: 03 March 1914
• Parties: FARRELL v. KIRKWOOD.
• Court: Oregon Supreme Court

139 P. 110

69 Or. 413

FARRELL v. KIRKWOOD.

Supreme Court of Oregon

March 3, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; F. M. Calkins, Judge.

Action by J. W. Farrell against R. J. Kirkwood. From a judgment for defendant, plaintiff appeals. Reversed.

R. C Wright, of Portland, for appellant. W. E. Critchlow, of Portland, for respondent.

McNARY, J.

Failing to meet the demand for the payment of two promissory notes one for $719.81, the other for $64.90, plaintiff brings this action to recover of defendant two separate judgments. The complaint embraces the conventional allegations. The notes were executed and delivered by defendant to the Columbia Life & Trust Company, and by it indorsed to plaintiff. Defendant admits the execution of the notes, but alleges as a separate defense that for a number of years he was employed by the Columbia Life & Trust Company in the capacity of special agent, soliciting and writing insurance policies for the company; that, in the event a prospective policy holder did not have money sufficient to pay the first year's premium for a life insurance policy, defendant was authorized to take the promissory note of the insured as payment for the first year's premium; that the vice president of the company told defendant to accept promissory notes as payment for the first year's premium from any person whom defendant could induce to take a policy, and that the company would not hold defendant responsible in case of inability to collect; that the notes sued upon are equal in amount to notes executed by policy holders to defendant in payment of their first year's premium, and indorsed by him to the Columbia Life & Trust Company; that, when a policy holder did execute to defendant a note covering the first year's premium, he would indorse the note to the company, and thereupon defendant was paid in cash an amount equal to about 50 per cent. of the sum mentioned on the face of the note, which in this case amounted to $363.12 on the one note, and $32.45 on the other; "and defendant alleges that the amount plaintiff is seeking to collect from defendant is usurious, and contrary to the laws of the state of Oregon." By a replication, plaintiff denied the new matter incorporated in the defendant's answer, and asserted that the parties litigant had, during the month of December, a mutual accounting, whereby it was determined and agreed that the sums sued upon were justly due from defendant to plaintiff. At an incipient stage of the trial, upon suggestion by counsel for plaintiff, defendant's representative elected to defend upon the ground of usury. Following the submission of the case, the jury returned a verdict finding that the notes sued upon were usurious. Conformable to the verdict, and to section 6030, L. C. L the court adjudged that the state of Oregon, for and on behalf of the common school fund of the county of Multnomah have and recover of and from defendant the sums of $363.12 and $32.45, and that the defendant herein have and recover from the plaintiff herein costs and disbursements.

Plaintiff, through his attorney, moved the court for an order granting a new trial, assigning therefor a number of grounds which were disallowed by the court.

A number of specifications of error are made on this appeal, though their orbit is around the question of the defense of usury, either upon the sufficiency of the pleadings, the testimony offered in support thereof, or the correctness of the instructions of the court as to the law applicable thereto.

The statute of the state on the subject of usury provides, among other things:

"Sec 6028. The rate of interest in this state shall be six per centum per annum, and no more, on all moneys after the same becomes due; on judgments and decrees for the payment of money; on money received to the use of another and retained beyond a reasonable time without the owner's consent, expressed or implied, or on money due upon the settlement of matured accounts...