Fisher v. Adamson

• Decision Date: 06 August 1915
• Docket Number: 2709
• Citation: 47 Utah 3,151 P. 351
• Court: Utah Supreme Court
• Parties: FISHER v. ADAMSON, et al

151 P. 351

47 Utah 3

FISHER v. ADAMSON, et al

No. 2709

Supreme Court of Utah

August 6, 1915

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by H. C. Fisher against Elizabeth M. Adamson and D. W Adamson.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

H. J Robinson, for appellants.

Stringfellow & Whitaker, for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

Plaintiff brought this action to recover on a promissory note of $ 300, dated July 27, 1912, payable in sixty days by the defendants to the plaintiff, "without interest until maturity, and one per cent. per month thereafter." The execution and nonpayment of the note are admitted. The defense is usury. The court found against the defendants. They appeal.

The only question is that of usury. By our statute (C. L. 1907, section 1241x) the maximum legal rate of interest is one per cent. per month. The statute further (section 1241x 3) provides that:

"All * * * notes * * * whereupon or whereby there shall be reserved or taken or secured, or agreed to be reserved or taken, any greater sum or greater value for the loan or forbearance of any money, goods, or other things in action than is above prescribed, shall be void."

The note was secured by another note of $ 2,000 of another party, payable to the defendant, Mrs. Adamson, which was secured by a realty mortgage.

As shown by the plaintiff's evidence the facts are: The defendants applied to the plaintiff for a loan of $ 300 for sixty days, and offered the other note and mortgage as security. The plaintiff declined to make the loan, stating that the trouble in looking up the securities would be worth more than the amount of legal interest, $ 6. The defendants thereupon agreed to pay him $ 10 for interest and his trouble in looking up the securities. As to that the plaintiff testified that a Mr. Parker brought the defendant Adamson to him, and--

"I told him I couldn't afford to leave my business and look into it for the small amount of money it involved. Mr. Parker and Mr. Adamson said it would certainly be an accommodation if I could make the loan, that they were in a position where they needed the money bad, and Mr. Adamson, said they were excavating some ground in order to put up a permanent house--said they needed the money in doing the excavating, and tearing down the old house. He said, if I would make the loan, he would give me $ 10 for the loan and for my trouble in looking up the security."

The plaintiff thereupon examined the security, and, finding it satisfactory, made the loan the next day, paying the defendant $ 290; they in turn giving him the note and the security. Another witness for the plaintiff testified substantially to the same facts.

Parker testified on behalf of the defendants that the plaintiff said that the $ 6 interest would not be enough, and that Mr Adamson immediately spoke up and said, "I will give you ten dollars if you will let me have the money; I have to have it"; that he was excavating for a house and needed the money; that the plaintiff consented then to make "a date the following day; so they made a date the following day, to look into the matter; so we left at that time." The loan was made the next day, the plaintiff paying the defendants $ 290, they in turn giving him the note sued on, and indorsed and transferred the security. He further testified that the plaintiff said--

"he did not have time to look into it, as there wasn't enough there for him, when I told him it would amount to six dollars; but when Mr. Adamson said ten dollars he took it. Q. Then Mr. Adamson said he would give him ten dollars to pay him for his trouble in looking into it. A. Yes, sir."

Adamson testified that the plaintiff said--

"he would make the loan, but the consideration wasn't sufficient. I asked him what he would...