Munn v. Mid-Continent Motor Securities Co.
| Decision Date | 24 June 1924 |
| Docket Number | 12925. |
| Citation | 228 P. 150,100 Okla. 105,1924 OK 646 |
| Parties | MUNN ET AL. v. MID-CONTINENT MOTOR SECURITIES CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is the settled rule that a demurrer to the evidence admits every fact, which the evidence, in the slightest degree, tends to prove, and all inferences or conclusions that may be reasonably and logically drawn from the evidence. This court will consider as withdrawn all the evidence which is most favorable to the party demurring. If the inference to be drawn from the evidence is a reasonable one, although not a necessary one, the court will not invade the province of the jury by taking from it the right to pass on the facts to be deduced from such inference.
Section 5097, Comp. Okl. Statutes 1921, provides:
Section 5098, Comp. Okl. Statutes 1921, provides:
Usury is the taking of a greater premium for the use of money loaned than the law allows, and, if the lender takes, receives, reserves, or charges a greater rate than 10 per cent. per annum, he forfeits twice the amount of the interest which has been agreed to be paid thereon; and whatever the form of the transaction may be, it is usury if the rate of interest taken, charged, reserved, or received is unlawful.
It is the uniform policy of the courts not to permit an act forbidden or penalized by statute to be done either directly or indirectly. This court will not uphold any shift or device by which the lender may receive more than 10 per cent. per annum for the use or forbearance of money.
If the interest is paid, either voluntarily or from the proceeds of the sale of the borrower's property, it cannot logically be said that the same was not paid by the borrower. The law does not require a showing that the interest was voluntarily paid.
It is a settled rule that, if the compromise agreement is accepted in satisfaction of the original demand, and the agreement to accept is based on sufficient consideration, the original demand is extinguished, and cannot be the foundation of an action, and it makes no difference whether the original demand was on tort or on contract; but the promise or agreement will not operate as a satisfaction of the original debt or demand, unless the claimant intended to accept it as such, and such intention must be alleged and proven.
Commissioners' Opinion, Division No. 5.
Appeal from District Court, Tulsa County; W. B. Williams, Judge.
Action by Maude B. Munn and another against the Mid-Continent Motor Securities Company. From a judgment for defendant, plaintiffs appeal. Reversed.
W. T. Hunt, of Tulsa, for plaintiffs in error.
Reeves & Russell, of Tulsa, for defendant in error.
This action was commenced in the district court of Tulsa county, Okl., by Maude B. Munn and M. J. Munn, plaintiffs in error, plaintiffs below, against the Mid-Continent Motor Securities Company, defendant in error, defendant below, for the recovery of $4,585.50, double the amount claimed to have been withheld by the defendant in error in violation of the usury statute of this state, together with reasonable attorney's fees and their costs. The parties will be referred to as plaintiffs and defendant as they appeared in the lower court.
Plaintiffs, in their petition, allege that on April 6, 1920, they owed the defendant the sum of $23,500 on promissory notes, made, executed, and delivered by them on said date to the defendant, bearing interest at the rate of 10 per cent. per annum, due May 6, 1920; that said notes were secured by mortgage on 13 standard, 3-ton FWD trucks; that one of the trucks was sold for $2,750, which amount was paid to the defendant and credited upon said notes before maturity; that plaintiffs sold the other trucks in July, 1920, for the sum of $34,300; that said draft was made payable to the defendant and delivered to the defendant, less exchange of $40.25, the defendant actually receiving the sum of $34,259.75; the defendant was entitled to charge against the plaintiffs the sum of $50 as expenses for loading the trucks and $238.50 as premium paid for insurance on said trucks; that all of said trucks were sold by plaintiffs without expense to the defendant, except the items as above stated; that defendant after repeated demands, made by the plaintiffs, for a final settlement, on the 23d day of July, 1920, after reserving and holding the sum of $2,292.75 as interest, paid the plaintiffs the sum of $10,928.50, claiming that said amount was all that was due the plaintiffs, under the contract; that defendant refused to pay any of the money until plaintiffs had signed a certain receipt; that the said sum of $2,292.75, so held and reserved by defendant, exceeded the maximum contract rate of 10 per cent. and was usurious and unlawful and was so known by defendant; that plaintiffs had made written demand upon the defendant for the return of $4,585.50, as provided by law, and pray judgment for the said sum of $4,585.50, together with a reasonable attorney's fee and all their costs expended. Copies of the notes, receipt, and written demand were filed as exhibits to the petition and made a part thereof.
The defendant answered by way of an unverified general denial.
Plaintiffs introduced their testimony, and, at the close of the testimony on part of the plaintiffs, the defendant demurred to the evidence of plaintiffs on the grounds that the same was not sufficient to sustain plaintiffs' cause of action, which demurrer was by the court sustained and exception reserved by the plaintiffs, and the court thereupon directed the jury to return a verdict in favor of the defendant.
A motion for new trial was filed, heard, and overruled, exceptions reserved, and the court entered judgment thereon in favor of the defendant and against the plaintiffs for costs, from which judgment the plaintiffs appeal to this court for review.
The attorney for plaintiffs set up seven assignments of error, but contents himself with arguing the same under one head; that is, that the court erred in sustaining the demurrer of defendant to the evidence of plaintiffs and directing the jury to return a verdict for the defendant, which is the only matter urged by attorney for plaintiffs in his brief.
The rule to be applied here has been determined by this court in numerous cases as follows:
Sartain v. Walker, 60 Okl. 258, 159 P. 1096.
And to like effect are the cases of Lyon v. Lyon, 39 Okl. 111, 134 P. 650; Anthony v. Bliss, 39 Okl. 237, 134 P. 1122.
There has been no departure from the rule laid down in the cases, supra, but the same is the uniform holding of this court.
It therefore, becomes necessary to examine the testimony introduced by plaintiffs at the trial. Only two witnesses were introduced by plaintiffs. The testimony of W. H. Oberthier, secretary and treasurer of Munn Bros., was to the effect that the notes, aggregating $23,500, were given by plaintiffs through Paul R. Warner for the defendant and indorsed by him to the defendant, dated April 6, 1920, due May 6, 1920, secured by mortgage on 13 trucks, for a loan; that the first payment made on the notes was on or about April 27th, by the sale of one of the trucks for $2,750, and there were no further payments made until on or about July 15th, which was by the sale of the balance of the 12 trucks for $34,300 by draft, which was drawn in the defendant's name and delivered to the defendant; that the plaintiffs owed $40.25 exchange on the draft and an extra charge of $50 for loading the trucks and insurance on the trucks of $238.50, which amounted to the total sum of $328.75, and after deducting this amount from the amount received from said sale left the sum of $33,971.25; that on the 15th day of July, 1920, in addition to the balance due defendant, there was due interest at 10 per cent. from May 6th, in the sum of...
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