Jourdon v. Commonwealth Co.
| Citation | 169 Neb. 482,100 N.W.2d 84 |
| Decision Date | 24 December 1959 |
| Docket Number | No. 34626,34626 |
| Parties | Glenn O. JOURDON, Appellant, v. COMMONWEALTH COMPANY, a corporation, Appellee * . |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. If a litigant brings an equitable action, even now, when the same court administers both systems of law and equity, the litigant must maintain his equitable action upon equitable grounds, or fail, even though he may prove a good cause of action at law on the trial.
2. If an adequate remedy exists at law, a litigant may not obtain relief in equity. The burden is on the party seeking relief to establish he has no adequate remedy at law before he can succeed in a court of equity.
3. If no ground for equitable relief is alleged or if no equitable relief is granted, a court of equity will generally decline jurisdiction to enter a money judgment on a legal cause of action.
4. If a cause of action for equitable relief and a cause of action at law are joined and equitable relief is not granted, the court is without authority to determine the issue of personal liability and render a judgment on the cause of action at law.
5. In such a situation the cause of action at law must be determined as any other law action and should be retained by the court for that purpose.
6. The pendency of a former suit by the same parties may be shown in abatement when a judgment in such suit would be a bar to a judgment in the second action. That one is an equitable action and the other a suit at law is immaterial if both suits are based upon substantially the same facts.
E. D. Warnsholz, Lincoln, for appellant.
Ginsburg, Rosenberg & Ginsburg, Norman Krivosha, Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Appellee was at all times important to this litigation a corporation authorized by license issued to it by the State of Nebraska to engage in transactions by virtue of and subject to the conditions and limitations of the Industrial Loan and Investment Company Act. Sections 8-401 to 8-433, R.R.S.1943. Appellee permitted appellant to be become obligated to appellee on seven promissory notes, payable to its order, and executed and delivered to it by appellant, as follows:
1. A note dated April 8, 1954, for the sum of $1,444, payable in 2 monthly installments the last of which was due June 8, 1954. The amount of this note was wholly paid by August 7, 1954, and the note was canceled by appellee and surrendered to appellant August 18, 1954.
2. A note dated April 17, 1954, for the sum of $1,601, payable in 2 monthly installments the last of which was due June 17, 1954. The amount of this note was satisfied in part by a credit thereon of the amount of two notes given appellee by appellant each dated August 3, 1954, hereafter described, one in the sum of $700 and the other in the sum of $575. The amount of the note of April 17, 1954, was wholly paid by August 7, 1954, and the note was canceled by appellee and returned to appellant.
3. A note dated June 24, 1954, for the sum of $1,330, payable in 2 monthly installments the last of which was due August 24, 1954. The amount of this note was satisfied in part by a credit thereon for the sum of $1,107 of a note given appellee by appellant dated November 15, 1954, hereafter described, in the sum of $1,755.66. The amount of the note of June 24, 1954, was wholly paid by November 15, 1954, and the note was by appellee canceled and returned to appellant.
4. A note dated August 3, 1954, for the sum of $700, payable in 12 monthly installments the last of which was due August 3, 1955. The amount of this note was paid by July 26, 1955, and the note was by appellee canceled and returned to appellant.
5. A note dated August 3, 1954, for the sum of $575, payable in 2 monthly installments the last of which was due October 3, 1954. The amount of this note was satisfied in part by a credit thereon in the sum of $575 of a note given appellee by appellant dated November 15, 1954, hereafter described, in the sum of $1,755.66. The note of August 3, 1954, for $575 was by November 15, 1954, paid and it was by appellee canceled and returned to appellant.
6. A note dated November 15, 1954, for the sum of $1,755.66, payable in 12 monthly installments the amount of which note was satisfied in part by a credit thereon of the sum of $915.88 of a note given appellee by appellant dated August 2, 1955, hereafter described, in the sum of $958.23. The note of November 15, 1954, for the sum of $1,755.66 was paid by August 2, 1955, and it was canceled and returned to appellant.
7. A note dated August 2, 1955, for the sum of $958.23, payable in 18 monthly installments the last of which was due February 2, 1957. The only part of this note which has been paid was $20.39 paid in cash by appellant October 12, 1955.
Each of the notes contained the following:
The first cause of action of the second amended petition of appellant concerns only six notes, 1 to 6, described above. It alleged substantially the matters recited above and appellant also therein pleaded the following: The interest designated on the face of each of the said notes given by appellant to appellee and all interest charges paid by appellant on each of the notes were in excess of the maximum rates prescribed by section 8-418, R.R.S.1943. Appellee induced and permitted appellant to enter into the six separate loan contracts (described herein as promissory notes) and two or more of them were wholly or partially in effect from April 8, 1954, to August 2, 1955, for the purpose of permitting appellee to obtain and receive higher rates of interest than were provided in section 8-418, R.R.S.1943, and in direct violation of the provisions of section 8-419, R.R.S.1943. The six promissory notes and the payments made thereon were void and uncollectible but appellant paid the notes in full and they were canceled by appellee on or about the date when final payment was made as recited above. The promissory note dated November 15, 1954, in the principal sum of $1,755.66 made by appellant to appellee was void and uncollectible because it included charges accrued more than 60 days previously in connection with the note dated June 24, 1954, in the principal amount of $1,330 made by appellant to appellee. The six loan contracts were void and appellee had no right to collect and receive any principal, interest, or charges thereon or on any of them. Appellant paid to appellee on note No. 1, $1,486.19; on note No. 2, $1,661.78; on note No. 3, $1,401.10; on note No. 4, $783.42; on note No. 5, $602.67; and on note No. 6, $1,928.91. Appellee holds in trust for and is indebted to appellant for all sums of money actually paid by him to appellee and received and accepted by it, with legal interest thereon.
The relief asked on the basis of the first cause of action was an adjudication that the notes were void and for a judgment in favor of appellant against appellee for all payments made thereon with legal interest.
The answer of appellee to the first cause of action of appellant to the extent necessary to be repeated here was in substance the following: An admission of the corporate status of appellee; that it was licensed as an industrial loan and investment company on August 12, 1941, by the state; and that the promissory notes described in the first cause of action were canceled by appellee. A denial of the other allegations of the first cause of action. A plea that all of said promissory notes were prior to and at the time of the commencement of the action in the possession of appellant, marked canceled by appellee, and delivered by it to appellant. This was done long before any claim of appellant, as alleged in this litigation, was made by him against appellee. The canceled notes were accepted by appellant, were fully extinguished, and were in the absolute control and possession of him before and at the time of the commencement of this case. Appellee did not induce or permit appellant to become liable on more than one contract of loan at the same time for the purpose of obtaining a higher rate of interest than would have been permitted if the obligations of appellant had been consolidated into one obligation but the loans were made and the notes executed at the express request, direction, and solicitation of appellant for his sole benefit, accommodation, and convenience in conducting his several businesses and activities. A defense that the purported cause of action of appellant accrued more than 2 years before the institution of this action by him, is for the recovery of a forfeiture and a penalty, is required to be brought within 1 year from the date of the accrual of the cause of action, and the alleged cause of action is barred by the statute of limitations of this state. The answer also interposed the assertion that the district court as a court of equity had no jurisdiction to entertain the action because appellant had an adequate remedy at law and he had not pleaded grounds for equitable relief. The prayer was for dismissal of the first cause of action.
The trial court found for appellee and rendered a judgment of...
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