McLoughlin v. Malnar
| Decision Date | 15 April 1941 |
| Citation | 297 N.W. 370,237 Wis. 492 |
| Parties | McLOUGHLIN et ux. v. MALNAR et ux. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Brown County; Henry Graass, Judge.
Affirmed.
Action begun July 7, 1939, by Albert J. McLoughlin and Martha, his wife, against Anton Malnar and Mary, his wife, to have a deed and accompanying agreement construed to be a mortgage with a rate of interest that is usurious. From an order denying plaintiffs' motion for a summary judgment, plaintiffs appeal.
Plaintiffs owed defendants $3,000 and accrued interest as of May 15, 1933. Between that date and June 25, 1933, negotiations were had whereby plaintiffs sought to borrow $7,422.05 more from defendants. The result of the negotiations was an agreement which was substantially as follows: Plaintiffs executed and delivered a deed to defendants who in turn executed and delivered a land contract to plaintiffs wherein plaintiffs agreed to pay $14,422.05, in instalments of $50 a month, plus interest at the rate of seven per cent per annum, payable monthly on the unpaid balance. Part of that amount covered the prior $3,000 debt with interest; part of it included the requested additional loan; and the remaining $4,000 is here in question. Plaintiffs contend it is consideration for the loan and forbearance of the $10,422.05, and therefore usury. Defendants claim it is an indemnity to secure defendants from loss due to an advance, during the period of the loan, in the market value of securities sold to get the money for the loan; and that it was also to pay the bona fide expenses of procuring the money. Defendants in their counterclaim allege a loss of $3,000 on the stocks and securities sold in order to loan plaintiffs the money. A $10,000 life insurance policy in which Anton Malnar was the beneficiary was taken out on the life of Albert J. McLoughlin, and a $10,000 chattel mortgage on all plaintiffs' property was given to defendants. At the time this action was commenced plaintiffs had paid $7,140.72 to defendants, leaving an unpaid balance of $3,281.33 on the $10,422.05 loan over which amounts there is no controversy. A tender of such balance was alleged by plaintiffs in their complaint, denied by defendants in their answer, and again alleged by plaintiffs in their reply to defendants' counterclaim. Plaintiffs then made their motion for summary judgment under sec. 270.635, Stats.North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for appellants.
Martin, Clifford & Dilweg, of Green Bay, for respondents.
[1][2] The practice of resorting to motions for summary judgment came into being to prevent delay in the entry of a judgment due to the interposition of unfounded, false or frivolous answers. Unless it can be said from the pleadings and the disclosures made by affidavits that the counterclaim presents no cause of action or is false and frivolous, the motion should be denied. The circuit court was of the opinion that, giving the pleadings the benefit of a reasonable and liberal construction, a genuine and substantial issue of fact was shown to exist. Without discussing the merits of the claim embodied in the defendants' counterclaim, it may be said to be reasonably conceivable that without offending against the laws of usury one might be protected against a loss resulting from putting his property upon a low market in order to secure immediate funds for the borrower. The summary judgment procedure is not calculated to supplant the demurrer, or motion to make pleadings more definite and certain, nor is it to be a trial on affidavits. It is aimed at a sham answer which is intended to secure a delay. Sullivan v. State, 213 Wis. 185, 191, 251 N.W. 251,91 A.L.R. 877;Prime Mfg. Co. v. A. F. Gallun & Sons Corp., 229 Wis. 348, 350, 355, 281 N.W. 697.
[3][4] The question raised by appellants as to the necessity of proving a tender where an attack or defense is made on the ground of usury must be answered against them. The regulation of interest rates has been the subject of legislation since early in the history of mankind. At common law no rate of interest was illegal, in the absence of statutory enactment, unless it was so great as to be unconscionable. In this state the law with reference to the defense of usury has not changed since 1872, so far as loans of the size of the one now under consideration is concerned. There was a period prior to that time when the statute provided that whenever any borrower shall commence an...
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Eichenseer v. Madison County Tavern League
...statutes exists, "it is the duty of the court to construe the acts if possible that both shall be operative." McLoughlin v. Malnar, 237 Wis. 492, 496-97, 297 N.W. 370 (1941). Similarly, in a 1971 decision, this court quoted with approval a Black's Law Dictionary definition of implied repeal......
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Town of Blooming Grove v. City of Madison
...goes to the merits and does not take the place of a demurrer. Fredrickson v. Kabat, 260 Wis. 201, 204, 50 N.W.2d 381. McLoughlin v. Malnar, 237 Wis. 492, 495, 297 N.W. 370. Here the court had jurisdiction of the parties and the subject matter. Town of Madison v. City of Madison, 269 Wis. 60......
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Karlin, Planned Parenthood Wisconsin v. Foust
...meaning, where such seems to have been the legislative purpose. Jicha v. Karns, 159 N.W.2d 691, 693 (Wis. 1968) (quoting McLoughlin v. Malnar, 297 N.W. 370 (Wis. 1941) (internal citations omitted)). Thus, we must make every attempt to give effect to both provisions by construing them togeth......
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...seems to have been the legislative purpose.' Jicha v. Karns, 39 Wis.2d 676, 680, 159 N.W.2d 691 (1968), quoting McLoughlin v. Malnar, 237 Wis. 492, 496, 497, 297 N.W. 370 (1941). In light of our above construction, concerns raised by Black and by the American Civil Liberties Union (ACLU) th......