Mack Investment Company v. Dominy
| Decision Date | 12 December 1941 |
| Docket Number | 31236 |
| Citation | 1 N.W.2d 295,140 Neb. 709 |
| Parties | MACK INVESTMENT COMPANY, APPELLEE, v. R. E. DOMINY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Kimball county: J. LEONARD TEWELL, JUDGE. Reversed and dismissed.
Judgment of the trial court reversed, and cause dismissed.
Torgeson & Halcomb, for appellants.
R. P Kepler and John H. Kuns, contra.
Walter R. Johnson, Attorney General, Robert A. Nelson, Theodore L Richling, Peter E. Marchetti and Flansburg & Flansburg, amici curiae.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is a replevin action wherein plaintiff (appellee) seeks to recover possession of a 1936 model Chevrolet pick-up coupe, of the stipulated value of $ 250, by reason of a chattel mortgage, given by defendants (appellants) to the plaintiff to secure the payment of a note as hereinafter described. This action was originally filed in the county court, resulting in a dismissal. The plaintiff appealed to the district court. Plaintiff's petition in the district court alleges in substance:
The plaintiff is a trade-name for John H. Mack (referred to hereinafter as plaintiff), who has been licensed since June 1, 1939, to transact business as a loan broker, as provided for by law. Plaintiff claims a special property in the Chevrolet pick-up by virtue of a chattel mortgage, securing payment of a note dated June 1, 1939, upon which the defendants have made two payments, viz., July 3, 1939, $ 24.99; September 5, 1939, $ 24.99. No other payments have been made. The petition alleges plaintiff's right to immediate possession of the Chevrolet pick-up, damages, and further prays judgment for the sum of $ 343.75, together with interest thereon at the rate of 10 per cent. per annum from September 5, 1939. The original petition of replevin, filed by plaintiff in the county court, setting forth in substance the same facts, states that there was due plaintiff $ 399.84. The amended petition for replevin, filed by plaintiff in the county court, prays judgment against the defendants for the sum of $ 362.13, with interest at 10 per cent. per annum from September 18, 1939, the amount due on the chattel mortgage. Defendants' answer in the district court contains a general denial, admits that defendants borrowed $ 350 from the plaintiff and promised to pay plaintiff, in consideration of a loan, in 18 monthly installments of $ 24.99 each, or $ 449.82; alleges that the contract is usurious and constitutes a charge in excess of that permitted by the statutes of Nebraska. Thus, it is apparent that plaintiff, in his original pleadings, made an effort to collect the full amount of the note.
The court, in consideration of the motions of both plaintiff and defendants to return a verdict in favor of each respective movant, made a finding generally for the plaintiff and against the defendants; that on June 1, 1939, plaintiff loaned $ 350 to the defendants, who executed a note; that the defendants made the payments as heretofore set forth in plaintiff's petition; that plaintiff was entitled to possession of the Chevrolet 1936 pick-up, of the value of $ 250; that plaintiff has been damaged in the sum of one cent. After motion for a new trial was overruled, defendants appealed to this court.
The principal assignment of error is that the judgment of the district court is erroneous in that the court failed to find such contract usurious and void. This involves a consideration of certain provisions of the small loan act. Comp. St. 1929, secs. 45-112 to 45-123, inclusive. The purpose and intent of the legislature in passing this act were to protect the borrower against excessive and usurious rates of interest on small loans, and other charges, made under one subterfuge or another, and to control and regulate, rather than protect, the lender.
The legislature has the power to regulate interest, and legislation like that under consideration (the small loan act) is within the police power of the state. Althaus v. State, 99 Neb. 465, 156 N.W. 1038; Griffith v. State of Connecticut, 218 U.S. 563, 31 S.Ct. 132, 54 L.Ed. 1151. The law regulates the interest chargeable by licensed lenders authorized to make an additional charge, called a "brokerage fee," not exceeding one-tenth of the money actually lent and, in exceptional cases, to charge an examination fee of 50 cents.
The plaintiff contends that the fine print contained in the chattel mortgage form (exhibit 1) provides that it would not be entitled to collect any more than the law permits under the small loan act. An analysis of this language and of the typewritten parts of the chattel mortgage and other evidence discloses the intent of the plaintiff to collect the full amount of the note.
"When an instrument consists partly of written and partly of printed form, the former controls the latter, where the two are inconsistent." Comp. St. 1929, sec. 20-1216. Typewriting is writing within the contemplation of the statute, providing that, when an instrument consists partly of written and partly of printed form, the written controls the printed form, where the two are inconsistent. New Masonic Temple Ass'n v. Globe Indemnity Co., 134 Neb. 731, 279 N.W. 475.
The chattel mortgage, given by the defendants to the plaintiff June 1, 1939, in the original amount of $ 350, sets out as security the Chevrolet pick-up and certain household goods, and, in addition, sets out in typing that "18 payments of $ 24.99" are to be made by defendants to the plaintiff. The installment payments aforesaid were computed on the basis of anticipating the amount of principal which would be due at the end of six months, and adding to that amount a 10 per cent. brokerage fee on the unpaid balance, and anticipating the regular payments would be met until the end of the six-month period. An additional brokerage fee was charged on the unpaid principal remaining a year from June 1, 1939. Originally, a brokerage fee of $ 35 was charged when the loan was made June 1, 1939, which was due and payable at the end of the first six-month period, viz., December 1, 1939, in accordance with the terms of the note.
The cases of Grand Island Finance Co. v. Fowler, 124 Neb. 514, 247 N.W. 429, and Fidelity Finance Co. v Westfall, 127 Neb. 56, 254 N.W. 710, are not controlling. The facts and parties present a different situation than exists in the instant case, rendering such decisions of little value in determining the case at bar. The case of Personal Finance Co. v. Gilinsky Fruit Co., 127 Neb. 450, 255 N.W. 558, is...
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