Kilcrease v. Johnson

• Decision Date: 02 June 1890
• Parties: KILCREASE v. JOHNSON.
• Court: Georgia Supreme Court

11 S.E. 870

85 Ga. 600

KILCREASE v. JOHNSON.

Supreme Court of Georgia

June 2, 1890

Error from superior court, Schley county; FORT, Judge.

W. H. McCrory and E. A. Hawkins, for plaintiff in error.

B. P. Hollis, for defendant in error.

SIMMONS, J.

The pleadings and facts in this case are substantially the same as in the case of Martin v. Johnson, 10 S.E. 1092. Here, as there, the note was made in this state, to be paid in Massachusetts, with a deed to land to secure the payment thereof. Here, as there, the pleas alleged usury arising from a like transaction, in that the amount borrowed and for which the note was given was $300, when only $231 was delivered by the lender and received by the borrower, the latter thus giving his note for $69 more than he received. The plea shows, therefore, that $69 of the principal of the note was taken out of the principal at the time the contract was made in this state. In the case of Martin v. Johnson, supra, upon substantially the same state of facts, we held that the court erred in striking the pleas, and we think that decision covers the facts in this case. Of course we do not pretend to pass upon the truth of the allegations in the pleas, but merely to decide that if they are true the note was usurious, and the usury reserved at the time the contract was made in this state could not be recovered here. If it should turn out upon the trial that Kilcrease paid the $69 to his agent to procure the loan, as was done in the case of Merck v. American Freehold, etc., Co., 79 Ga. 213, 7 S.E. 265; Hughes v. Griswold, 82 Ga. 299, 9 S.E. 1092; and Riley v. Olin, 82 Ga. 312, 9 S.E. 1095, it was not usury, and the plaintiff would be entitled to recover the same.

2. The court also struck the plea that the making of the note payable in Massachusetts was a mere device to evade the laws of Georgia. In this we think the court erred. That was a question for the jury.

3. The defendant also pleaded that the amounts sued for were not due, and no judgment could be taken for them, notwithstanding the agreement that the whole should become due and payable upon the defendant's failure to pay any part thereof when due. There was no error in striking this plea. Judgment reversed.