Foskin v. Laessig

• Decision Date: 02 December 1930
• Docket Number: No. 21361.,21361.
• Citation: 32 S.W.2d 768
• Parties: FOSKIN v. LAESSIG.
• Court: Missouri Court of Appeals

32 S.W.2d 768

FOSKIN v. LAESSIG.

No. 21361.

St. Louis Court of Appeals. Missouri.

December 2, 1930.

As Modified on Denial of Rehearing December 16, 1930.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be officially published."

Action by Stephen R. Foskin, executor of the estate of Mary G. Foskin, deceased, against C. H. Laessig. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

R. M. Nichols, of St. Louis, for appellant.

W. C. Lochmoeller, of St. Louis, for respondent.

BECKER, J.

This is an action by Stephen R. Foskin, executor of the estate of Mary G. Foskin, deceased, upon a promissory note dated February 6, 1924, payable one year after date, with interest from date at the rate of 6 per cent. per annum, said note being made by defendant, C. H. Laessig, and payable to Mary G. Foskin.

The answer sets up a plea of payment of the note sued on, and then alleges that the note sued on was given in renewal of another note in like amount and which had been executed by defendant Laessig to the plaintiff's testatrix on or about December 1, 1913; that on said original note defendant Laessig had made regular monthly payments of $25 each from January, 1924, up to the time the note sued on was executed, and that there was in fact due and owing upon said original note, at the time the note sued on was executed, a balance of but $428.65. The answer further alleges that the note sued on was executed through a mistake of fact and the insistence on the part of Mary G. Foskin that all the payments that had been made up to that time were merely interest upon the principal of the note; and, since said payments amounted to 12 per cent. per annum, the transaction was usurious.

The defendant also filed a counterclaim for the sum of $950.53 as an alleged overpayment arising out of the alleged monthly payments of $25 from January, 1914, to October, 1922.

Plaintiff's reply to defendant's answer and plaintiff's answer to defendant's counterclaim were general denials.

The case was tried to the court without the intervention of a jury, and resulted in a judgment in favor of plaintiff in the sum of $1,815.90, and in favor of plaintiff on defendant's counterclaim. Defendant thereupon appealed.

Appellant here urges that, since his answer filed below sets up a plea of usury, the case is one of equitable cognizance, and that the findings of the trial court are therefore not binding on us on appeal. There is no merit in this contention.

Section 6495, Rev. Stat. Mo. 1919, provides that usury may be pleaded as a defense in civil actions in courts of this state, whereas section 6494 provides that any party taking more than legal interest "shall be subject to be sued, for any and all sums of money paid in excess of the principal and legal rate of interest of any loan, by the borrower. * * *"

We rule the action is one at law which in the instant case affords the defendant an adequate remedy. Long v. Greene County Abstract & Loan Co., 252 Mo. 158, 158 S.W. 305. Moreover, that this was defendant's view at the trial below is evidenced by the fact that he specifically waived a jury.

At the trial, the execution of the note being admitted, plaintiff introduced the note in evidence and rested. The defendant introduced testimony to the effect that in December, 1913, plaintiff's decedent, Mary G. Foskin, loaned the defendant the sum of $2,500 for which he executed and delivered to her his promissory note; that on February 6, 1924, the note herein sued upon was executed by defendant and given plaintiff's decedent in place and in lieu of the said original note of December, 1913; that said new note was payable one year after date with interest at the rate of 6 per cent. per annum; that the said Mary G. Foskin died October 5, 1928.

Upon the record there was testimony which, if believed, would tend to prove that defendant, beginning with the month of January, 1913, continuously and in each month thereafter up to and including the month of October, 1928, paid the said Mary G. Foskin the sum of $25 per month, and either (A) that each of such payments up to February, 1924, were paid with the understanding that it was interest upon the original note of December, 1913, and that all payments after that date were payments of interest upon the note herein sued upon, which was given in lieu of the note dated December, 1913, or (B) that Mary G. Foskin was a distant relative of the defendant and lived in the house with defendant's mother-in-law and sister-in-law to whom, throughout the entire period of time here in question, defendant had regularly contributed $75 per month, and to plaintiff's decedent the sum of $25 per month as a voluntary contribution in aid of their maintenance and support; and that the sum of $25 per month paid in aid of the support and maintenance of the said Mary G. Foskin had no reference whatsoever to her loan...