Miller v. Bank of Harvey
| Decision Date | 26 January 1912 |
| Citation | 134 N.W. 745,22 N.D. 538 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Wells county; Goss, J.
Action by Joseph and Marianna Miller against the Bank of Harvey. Judgment for defendant, and plaintiffs appeal.
Affirmed.
Otto Grethen, for appellants.
John O Hanchett and Bessesen & Berry, for respondent.
BRUCE J. GOSS, J., did not participate in the hearing of the action.
This is an action to recover under the usury laws (§ 5513, Rev. Codes 1905) double the amount of all the interest paid. It comes to this court on an appeal from an order of the district court, setting aside a verdict for the plaintiffs and entering judgment non obstante veredicto in favor of the defendant.
It is undisputed that on March 2, 1908, plaintiffs (appellants herein) gave three notes, aggregating $ 3,000, to the defendant, which notes bore interest at the rate of 12 per cent, and which were afterwards paid by the plaintiffs. It is also undisputed that at the time these notes were given (one of them being for $ 1,494, one for $ 906, and one for $ 600) that plaintiffs only owed $ 2,400 on the prior mortgage notes, which were taken up at the time of the giving of the notes in question; and that if the $ 600 note was given as a bonus and received as a bonus for the loan evidenced by the other notes, or as additional interest therefor, and as claimed by the plaintiffs and appellants, that the transaction was usurious. It is also equally clear that if this additional note was given in payment for commissions on a separate and distinct land transaction, or in settlement of a claim for commissions under such transaction, and not as additional interest or bonus on or for the acceptance of the other two notes, as claimed by the defendant, that the transaction was not usurious. It is to be remembered in this case that the action is brought under the statute to recover double the interest paid, and is not one to recover the money paid on said $ 600 note, or to cancel the same. The controversy hinges entirely upon the question as to whether the $ 600 note in question was bonus, which the bank compelled plaintiffs to give and pay for renewing the two former notes, amounting to $ 2,400, and which were past due at the time of the transaction, or whether it was given in settlement of a land deal which the president and cashier of the bank had negotiated for plaintiffs, and which the plaintiffs refused to "go through with," whereby said president and cashier, who were carrying on their land business separate and distinct from the business of the bank, and under the name of Renfrew & Blanch Land Company, claimed to have lost a commission or profit of $ 3,000.
The appellants allege that the court erred in setting aside the verdict, and that, even if it was justified in doing so, it had no right to enter judgment in favor of the defendant and against plaintiffs, and to dismiss the action in spite of the verdict, but should have granted a new trial. They claim, and rightly, that "a motion for judgment notwithstanding the verdict should not be granted, unless the record shows, not only that the verdict is not sustained by the evidence, but also that there is no reasonable probability that defects in proof or pleadings can be remedied on a new trial." Hougton Implement Co. v. Vavrousky, 15 N.D. 308, 109 N.W. 1024; Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183; Welch v. Northern P. R. Co. 14 N.D. 19, 103 N.W. 396; AEtna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436. The defendant, on the other hand, claims, and rightly, also, that the rule propounded by the plaintiffs, and expressed in the authorities mentioned, can have no application in a case where it is not a question of the plaintiff's failing to offer testimony on some branch of the case, or sufficient testimony, but a case of a total failure of proof on the one vital issue in the case, caused by the plaintiff's admitting, on his cross-examination, the facts establishing the defense, and entirely admitting away his case. It does not apply, it insists, and also correctly, where the only effect of granting a new trial will be to give the plaintiff a chance to change his testimony upon another trial.
The testimony of the witnesses J. L. Blanch and S. S. Renfrew the cashier and president of the defendant bank, and the members of the Renfrew & Blanch Land Company, is clear upon the proposition that the $ 600 note was received and demanded in settlement of a controversy over a real estate transaction in which the defendant bank had no interest or connection, and was not taken as a bonus for the loan, or as a device to evade the statute, or to cover up a usurious transaction. The testimony of these witnesses is abundantly borne out by the documentary evidence, and the entries in the books of the bank and of the Renfrew & Blanch Land Company. The total sum of all of the notes, it is true, was secured by one mortgage, and that was made to the bank, and all of the notes in question were made payable to the bank, also. It is clear, however, that this was done merely for convenience, and that the notes might share equally in the security; and it is undisputed that $ 906 of the indebtedness was owing to the Winniesheik County State Bank, of Decorah, Iowa, held by the Bank of Harvey for collection; that $ 1,494 was owing to the Bank of Harvey; that after the notes were taken the $ 1,494 note was entered in the discount register, or "bills receivable" book of the bank, and a record of the $ 906 note was made in a book containing an account of the business of the ...
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