Johnson v. Grayson

• Decision Date: 19 July 1910
• Parties: JOHNSON v. GRAYSON.
• Court: Missouri Supreme Court

130 S.W. 673

230 Mo. 380

JOHNSON v. GRAYSON.

Supreme Court of Missouri, Division No. 2.

July 19, 1910.

1. APPEAL AND ERROR (§ 854)—REVIEW OF ORDER GRANTING NEW TRIAL—GROUNDS.

Where an order granting a new trial did not specify the grounds on which it was granted, it will be sustained on appeal, if any of the grounds set out in the motion are sufficient.

2. APPEAL AND ERROR (§ 979)—REVIEW—DISCRETION OF COURT—ORDER GRANTING NEW TRIAL.

The trial court has large discretion in granting one new trial, especially where the weight of the evidence is involved, the exercise of which will not be interfered with on appeal unless abused.

3. NEW TRIAL (§ 6)—"DISCRETION."

"Discretion" in granting a new trial means an honest attempt, in the exercise of judicial duty, to see that justice is done to establish a legal right.

4. TRIAL (§ 141)—QUESTION FOR JURY—UNCONTROVERTED EVIDENCE.

Where the allegations of the petition are denied by the answer, and oral evidence is introduced by plaintiff to sustain the issues on his part, defendant is entitled to have the jury pass on the evidence, though he offers no evidence at all.

5. TRIAL (§ 139)—QUESTION FOR COURT AND JURY—WEIGHT AND SUFFICIENCY OF EVIDENCE.

Where, in a law case, there is evidence which, if true, would establish any one of several defenses pleaded in the answer, the court should not give a peremptory instruction to find for plaintiff, but should submit the issue to the jury.

6. USURY (§ 80)—EFFECT—SECURITY.

Rev. St. 1899, § 3710 (Ann. St. 1906, p. 2078), provides that in actions for the enforcement of a pledge, or in any other case when the validity of the lien is in question, proof that the pledgee has exacted usurious interest shall render the pledge invalid. Held, that where a note was deposited as collateral for a debt, proof that the debt secured was usurious constituted a defense to an action by the pledgee on the note.

7. USURY (§ 52)—COMMISSIONS OF LENDER.

Plaintiff in lending his own money is not entitled to charge the borrower commissions in addition to interest.

8. USURY (§ 117)—EVIDENCE.

In an action on collateral given to secure a debt, evidence held to warrant a finding that the debt secured was usurious.

9. USURY (§ 88)—USURIOUS DEBT—RENEWAL.

The giving of a renewal note in which is included usurious interest charges as a part of the principal does not purge the note of usury, whether the interest has been previously paid or not.

10. BILLS AND NOTES (§ 92)—CONSIDERATION.

Where a third person and his wife who had no interest in a transfer of real estate were induced to sign a note and execute a deed of trust for no other purpose than to aid the parties to get the title to the land in such shape that one of them could handle it, and neither of the parties executing the note received anything of value therefor, it was without consideration.

11. BILLS AND NOTES (§ 497)—TRANSFER— BONA FIDE PURCHASER—WANT OF CONSIDERATION —BURDEN OF PROOF.

Where a note for which the makers received no consideration was transferred before maturity, the burden was on them in a suit thereon to show that the plaintiff had actual knowledge of the defect.

12. BILLS AND NOTES (§ 525)—TRANSFER— WANT OF CONSIDERATION — NOTICE — EVIDENCE.

In an action on a note by a transferee before maturity, evidence held insufficient to warrant a finding that the transferee had actual knowledge that the note was without consideration.

13. BILLS AND NOTES (§ 358)—BONA FIDE PURCHASER — PRE-EXISTING DEBT — EQUITIES.

Where a note is pledged as collateral security for a pre-existing debt, and no new consideration is given therefor, the pledgee takes it subject to equities existing between the original parties.

14. BILLS AND NOTES (§§ 139, 140)—RENEWAL —EFFECT.

The giving of one note in renewal of another is a continuance of the original indebtedness, and the extension of the time of payment by the giving of the renewal is a valuable consideration therefor.

15. BILLS AND NOTES (§ 363)—BONA FIDE PURCHASER—AMOUNT RECOVERABLE.

Where a note, which as between the parties was without consideration, was pledged before maturity to a bona fide purchaser, the latter could not recover thereon from the makers more than the amount of the debt for which it was pledged.

16. INTEREST (§ 68)—CALCULATION OF INTEREST —QUESTION FOR JURY.

In an action on a note, the calculation of interest is for the jury, even where a peremptory instruction to find for plaintiff is proper.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by James B. Johnson against Lucy H. Grayson. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

This is a suit on a note for $4,900, payable on or before two years after date to the order of Edward S. Warner, dated September 15, 1892, with interest at 8 per cent. from maturity, and signed by Robert K. Woods and Lucy H. Woods, brought by the plaintiff to whom he claims Warner pledged the note on August 19, 1893, as collateral security for the payment of note of that date for $2,300, made by Warner to plaintiff as payee.

The trial court gave peremptory instructions to the jury to find for the plaintiff, and they after some reluctance returned a verdict, on April 26, 1904, for $8,668.01. The defendant filed a motion for a new trial, and that was sustained on April 3, 1905, and from this order granting defendant a new trial plaintiff has appealed.

The defendant was formerly Lucy H. Woods, the wife of Robert K. Woods, the maker or one of the makers of the $4,900 note sued on. In the summer of 1892 one Greenwood, a real estate broker in St. Louis, was negotiating with Edward S. Warner for the purchase of an option on a large tract of real estate in the western part of the city It seems that there were some imperfections in the title to the property, and Warner suggested to Greenwood that instead of giving the customary option he would convey the property to Greenwood and take back from him notes secured by a deed of trust thereon, upon which notes he (Warner) could obtain the money necessary to cure the defects in the title. Greenwood agreed to this arrangement, but stated to Warner that he did not like to take the title in his own name and give his own notes, but said to Warner that one Robert K. Woods would take the title and give back the notes and deed of trust, and he could use that note to secure money to perfect the title, if that would be satisfactory. Warner acquiesced to this plan, and thereupon conveyed the property to Woods, and himself prepared a principal note for $4,900 and four interest notes for $147 cash, all dated September 2, 1892, all bearing 8 per cent. after maturity, and all payable to the order of Edward S. Warner, the $4,900 being made payable on or before two years from date. He also prepared a deed of trust to be executed by Woods and his wife, conveying the property of Nathen Frank as trustee, to secure the payment of said notes. Thereupon said Robert K. Woods and Lucy H. Woods, his wife, the defendant, on the same day signed both the deed of trust and the said notes, and the principal one of the said notes is the one sued on.

According to the testimony of the plaintiff, James B. Johnson, Warner, on the 16th day of January, 1893, borrowed $2,000 from him, and executed his note for that amount payable in 30 days, and delivered and pledged to the plaintiff to secure the payment of the said $2,000 note the $4,900 which Warner had received from Robert Woods, and also the interest notes and deed of trust. Plaintiff says that he deducted $100 for making the loan, and gave his check to Warner for $1,900, and Warner gave him his note for 30 days for $2,000, with 8 per cent. interest after maturity. This loan to Warner was renewed monthly, being increased and diminished in amount, until on August 19, 1893, it amounted to $2,300, and on that date Warner gave to plaintiff his 30-day note for that amount, pledging as collateral thereto the said Woods note for $4,900, the interest notes, and the deed of trust. Plaintiff's testimony is not clear as to the amount of these various renewal notes. On one view of it, the first note was for $2,000, and at the end of 30 days another for the same amount was given, and that on March 10th, he let Warner have $1,000 more and he on that day gave him a note for $3,000 for 30 days, and on April 12th he renewed that $3,000 note for 30 days, and that on May 15th Warner payed him $1,000 and gave him another 30-day note for $2,000, and when that came due borrowed $200 more and gave him another 30-day note for $2,200, and on July 15th borrowed $200 more and gave him a note for $2,400, and on August 19th paid him $100 and gave him another note for $2,300. He persistently testified that he did not "think" he charged Warner any interest or commission except the first $100. This is the most favorable summary of this testimony that can be made. It is true, then, a calculation of interest on each note separately, for 30 days, and adding the amount on each, would make the interest for seven months about $110; and whether or not the $100 paid by Warner at the outset be considered interest or commission, it would not be a usurious transaction, unless we were to consider only the note for $2,000 for 30 days, given in January.

But that is not the whole of plaintiff's testimony. On the other hand, his deposition was taken prior to the trial and at the trial defendant's counsel read him certain questions and answers from that deposition to test the accuracy of his testimony thus: "Q. In the testimony that you gave was this question asked you, and was this not your answer: `Q. What became of that note? Mr. Krum: Which note is that? Mr. Campbell: March 10, 1893. Q. What became of that note? A. I don't remember. Q. What became of that note? A. When the note matured I loaned him some more. I loaned him $1,000 more, and made a note for $3,000, and that $3,000 note I again renewed on April 12, 1893. Q....