Gross v. Coffey

• Decision Date: 09 June 1896
• Citation: 20 So. 428,111 Ala. 468
• Parties: GROSS v. COFFEY.
• Court: Alabama Supreme Court

20 So. 428

111 Ala. 468

GROSS v. COFFEY.

Supreme Court of Alabama

June 9, 1896

Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.

Action by Ephraim C. Gross against John R. Coffey. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action by Ephraim C. Gross to recover of John R. Coffey money alleged to be due the plaintiff on an agreement to refund usurious interest charged and collected on a loan made by the defendant to the plaintiff. The original complaint was filed July 8, 1890, containing the common counts. An amended complaint was filed, containing an additional special count setting up that, the plaintiff being indebted to the defendant for money loaned, upon a settlement of said indebtedness the defendant claimed and charged usurious interest, which the plaintiff refused to pay, and thereupon the defendant agreed that the amount of such usurious interest should be ascertained and refunded; that the plaintiff paid the full amount claimed, upon said agreement to return; and that the defendant, upon demand, had refused to ascertain and refund said usurious interest as agreed. Wherefore the plaintiff claims the sum of $4,000 upon said agreement. The cause was tried upon issue joined upon the plea of the general issue.

The evidence was without conflict that the indebtedness was evidenced by a series of four notes, one original and three renewal notes, as follows: (1) Note given January 7, 1878 and due December 27, 1878, for $1,700; (2) note given September 14, 1880, and due December 27, 1880, for $3,058 (3) note given May 9, 1884, and due December 27, 1884, for $4,281.20; (4) note given July 24, 1888, and due one day after date, for $5,505.62. The evidence is also without conflict that the indebtedness was settled December 19, 1889 by delivering to the defendant the sum of $6,132.36, and taking up the last note and the mortgage to secure the same. All the notes were secured by mortgages. The evidence for the plaintiff tended to show that in the indebtedness evidenced by the several promissory notes there was included usury, and that, upon the payment on December 19, 1889, to the defendant of the amount which he claimed, the defendant agreed that, if it was shown by calculation that usury was included in the amount of the indebtedness, he (the defendant) would refund the same to the plaintiff. The evidence for the plaintiff further tended to show that there was a pressing necessity for a settlement of the claims with the defendant, which were secured by a mortgage on the plaintiff's land, because it was necessary to lift the mortgage from the land in order to consummate a sale of the land which the plaintiff had made to one Scott, and that therefore, upon the defendant's agreeing to refund to the plaintiff any amount of usury which was ascertained to be included in the debt, the full amount as evidenced by the note was paid to the defendant. The evidence for the defendant tended to show that, at the time of the settlement of the indebtedness due him from the plaintiff, the defendant did not agree to refund to the plaintiff any usury that might be ascertained to be included in said indebtedness; that, in fact, there was no usury; that all that was said by the plaintiff was after he had paid the amount claimed by the defendant; and that, after such payment, upon the plaintiff's saying that he had paid the defendant too much, the defendant told him to make a calculation, and that if there was anything wrong, or he had been paid more than he was entitled to, he "would make it all right" with the plaintiff. As evidence bearing upon the question as to whether there was usury in the indebtedness, the plaintiff, as a witness in his own behalf testified that in 1878 he borrowed from the defendant $1,500 and to secure this sum he gave a note on January 7, 1878, for $1,700, payable December 27, 1878; that upon the note for $1,700 being presented to him for execution, he remarked to the defendant that it was for too much, as the defendant had agreed to let him have the money at 10 per cent.; that thereupon the defendant said that he "always put in enough to cover contingencies"; that he had agreed to pay the defendant 10 per cent. for the money, and upon his refusing to change the face of the note from $1,700 the plaintiff signed it, inasmuch as he needed the money to meet an obligation. The plaintiff further testified that the first note was renewed by a note, made on September 14, 1880, for $3,058; that, in making the renewal note, the interest was calculated at 12 1/2 per cent., and there was included in it $250, which the plaintiff had borrowed from the defendant in May, 1880; that these two sums, $1,500 and $250, constituted the only money ever borrowed by the plaintiff from the defendant. The plaintiff further testified, as a witness, that the third note, which was executed on May 9, 1884, for $4,281.20, and payable December 27, 1884, was a renewal of the second note, and included the amount due thereon, with interest. The fourth note was a renewal of the third, at 8 per cent. interest, and interest was calculated at the same rate on the last note at the time of settlement. There was other evidence introduced in behalf of the plaintiff tending to corroborate his testimony. The defendant's testimony, as a witness in his own behalf, was that, at the time of the execution of the first note, he (the defendant) loaned the plaintiff $1,580, and that he calculated the interest due thereon at 8 per cent., and included it in the face of the note, which made the $1,700; that the next note, for $3,058, included the interest due on the $1,700 to the time of the execution of the second note, and $1,085 which he (the defendant) had loaned to the plaintiff after the execution of the first note. The defendant further testified that the third note, for $4,281.20, included interest due on the second note to the time of the execution of the third, and also $245 which the defendant had loaned to the plaintiff after the execution of the second note, and that these sums, added to the principal of the second note, made the amount for which the third note was given. In the course of the trial, the defendant offered in evidence the deposition of E. C. Gross, taken on behalf of the plaintiff by John H. Vaught and W. C. Glover, and which had been suppressed on motion of the defendant. The plaintiff objected to the introduction of said deposition, on the ground that it was irrelevant, incompetent, and illegal, and no sufficient predicate had been laid for the introduction. The court overruled the objection, and the plaintiff duly excepted.

Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: "(1) In calculating usury, the defendant is not entitled to compound interest on any renewal of the note after usury crept into the indebtedness, if the jury are reasonably satisfied that there was usury in the indebtedness. (2) If the jury believe, from the evidence, that the original loan was $1,500 on the 7th day of January, 1878, and that an additional loan of $250 was made on the 7th day of May, 1880, and that this was all the money loaned, then the defendant is not entitled to compound interest at the time of the several renewals; but the jury should calculate simple interest on the different loans from their respective dates to the time of settlement, add this interest to the amount loaned, and deduct the aggregate from the sum paid on final settlement. The balance would be the sum plaintiff is entitled to recover, with interest from the final settlement, provided the jury are satisfied, from the evidence, that the defendant agreed to refund the usury. (3) If the jury believe, from the evidence, that there was usury in the first note, then, in calculating interest, they should not compound it at the several renewals, but compute legal interest on the sums loaned from their several dates to the time of the final settlement, and deduct the aggregate of the loans and simple interest thereon from the amount paid, and the balance would be the usury. (4) If the jury believe, from the evidence, that there was usurious interest in the first note, and they further believe, from the evidence, that the defendant agreed to refund the usury, if there was any, in the indebtedness, then they will calculate the interest at 8 per cent. on the principal of said note from the date thereof to the 19th day of December, 1889, without regard to the renewal notes. (5)...