Appeal
from Superior Court, Guilford County; Lane, Judge.
Action
by the Planters' National Bank of Virginia against the
Wysong & Miles Company and others, with counterclaim by
defendants. Verdict and judgment for plaintiff in a certain
amount, and both parties appeal. Error on plaintiff's
appeal, and no error on defendant's appeal.
The
elements of a loan or forbearance of money, either express or
implied, upon an understanding that principal shall be or may
be returned, and that an illegal profit shall be paid or
agreed to be paid, must be established by a sufficiency of
evidence; but the essential of intent to violate law may be
implied if all other essentials are expressed on face of
contract.
The
action was brought by the plaintiff, a national bank, to
recover of the defendants the amount of three promissory
notes aggregating $10,349.54; one dated September 10, 1917
for $4,349.54, and due on January 15, 1918; another dated
September 24, 1917, for $1,000, due January 15, 1918; and a
third, October 8, 1917, for $5,000 due on January 15, 1918.
These several notes were payable at the office of the
plaintiff in the city of Richmond, state of Virginia.
Plaintiff sues for the recovery of the face value thereof
with interest from maturity, to wit, January 15, 1918, at the
rate of 6 per cent. per annum.
The
material part of the pleadings is as follows:
"The
plaintiff, Planters' National Bank, complaining of and
concerning defendants, says:
"(1)
That it was on the dates hereinafter mentioned, and ever
since has been, and still is, a corporation created
organized, and existing under and by virtue of the laws of
the United States prescribed for the organization of
national banks, and as such is engaged in banking, with its
principal office and place of business in the city of
Richmond, state of Virginia.
"(2)
That the defendants are all residents of the county of
Guilford, N. C.
"(3)
That the defendant Wysong & Miles Company was at the dates
hereinafter mentioned, and ever since has been, and still
is, a corporation with its home office and place of
business in the county and state first above named.
"(4)
That on September 10, 1917, the defendant Wysong & Miles
Company, for value received, executed and delivered unto
this plaintiff, Planters' National Bank, its writing
obligatory, or note, whereby it promised to pay on January
15, 1918, to this plaintiff, Planters' National Bank,
or order, without offset, four thousand three hundred
forty-nine and fifty-four hundredths dollars ($4,349.54),
negotiable and payable at Planters' National Bank,
Richmond, Va.
"(5)
That on September 24, 1917, the defendant Wysong & Miles
Company, for value received, executed and delivered unto
this plaintiff, Planters' National Bank, its writing
obligatory, or note, whereby it promised to pay on January
15, 1918, to this plaintiff, Planters' National Bank,
or order, without offset, one thousand dollars ($1,000)
negotiable and payable at Planters' National Bank,
Richmond, Va.
"(6)
That on October 8, 1917, the defendant Wysong & Miles
Company, for value received, executed and delivered unto
this plaintiff, Planters' National Bank, its writing
obligatory, or note, whereby it promised to pay on January
15, 1918, to this plaintiff, Planters' National Bank,
or order, without offset, five thousand dollars ($5,000),
negotiable and payable at Planters' National Bank,
Richmond, Va.
"(7)
O. C. Wysong and the defendants J. A. Kleemier and J. R.
Brown all indorsed said writings obligatory, or notes, by
writing their several and respective names on the back of
the three several notes or writings obligatory before the
same were negotiated or delivered to this plaintiff.
"(8)
On each of said notes, or writings obligatory, and just
above and over the signatures of the said Wysong, Kleemier,
and Brown, the following entry is made: 'The
undersigned hereby waive demand, protest, notice of
dishonor, and the benefit of the homestead exemption, as to
this debt.' Said entry just quoted on each of said
notes was on there before, and at, the time the said
Wysong, Kleemier and Brown indorsed said several notes, and
was, and still is, a part of each of said notes or
obligations.
"(9)
O. C. Wysong died during the year 1918, while a resident of
the county and state first above mentioned, leaving a last
will and testament, wherein he named the defendant Fannie
I. Wysong as executrix thereof, and the said will and
testament has been duly probated and recorded in the office
of the clerk of the superior court for the state and county
first above named, and said Fannie I. Wysong has been duly
qualified as such executrix, and is now acting as such.
"(10)
The maker of, and the indorsers upon, the three several
notes or writings obligatory hereinbefore referred to, and
all of them, failed to pay the said three sums and every
part thereof, at maturity or at any other time, so that the
said three sums hereinbefore mentioned, which total ten
thousand three hundred forty-nine and fifty-four hundredths
dollars ($10,349.54), are due and owing by these several
defendants to this plaintiff, with interest on the full
amount of the same, which total, as above stated, ten
thousand, three hundred forty-nine and fifty-four
hundredths dollars ($10,349.54), with interest thereon from
January 15, 1918, till paid."
Then
follows the prayer for judgment.
The
defendants answered and counterclaimed, as follows:
"(1)
The first paragraph of the complaint is admitted.
"(2)
The second paragraph of the complaint is admitted.
"(3)
The third paragraph of the complaint is admitted.
"(4)
The allegations contained in the fourth paragraph of the
complaint are admitted to be true, but the defendants allege
that the note mentioned in said paragraph is one of a series
of notes given by the defendant the Wysong & Miles Company to
the plaintiff as hereinafter set out in the second defense
and counterclaim in this answer, and that the said note is
usurious, and has been paid as alleged in said counterclaim.
"(5)
The allegations contained in the fifth paragraph of the
complaint are admitted to be true, but the defendants allege
that the note mentioned in said paragraph is one of a series
of notes given by the defendant the Wysong & Miles Company to
the plaintiff, as hereinafter set out in the second defense
and counterclaim in this answer, and that the said note is
usurious and has been paid as alleged in said counterclaim.
"(6)
The allegations contained in the sixth paragraph of the
complaint are admitted to be true, but the defendants allege
that the note mentioned in said paragraph is one of a series
of notes given by the defendant the Wysong & Miles Company to
the plaintiff, as hereinafter set out in the second defense
and counterclaim in this answer, and that the said note is
usurious and has been paid as set out in said counterclaim.
"(7)
The seventh paragraph of the complaint is admitted.
"(8)
The eighth paragraph of the complaint is admitted.
"(9)
The ninth paragraph of the complaint is admitted.
"(10)
The allegations contained in the tenth paragraph of the
complaint are not true.
"Further
answering and for a second defense and counterclaim, the
defendants allege:
"That
on or about the 12th day of June, 1908, the defendant the
Wysong & Miles Company commenced to borrow money from the
plaintiff, and thereafter the said defendant, from time to
time, and during a period of time extending from said 12th
day of June, 1908, to the 8th day of October, 1917,
borrowed various sums of money from the plaintiff, and
renewed the loans from time to time, and about every three
or four months during said period, by executing notes in
renewal of former notes.
"That
the plaintiff, in each and every case, and out of each and
every loan of money to the defendant, simply gave the
latter a credit at the plaintiff's bank for the amount
borrowed at any particular time, and permitted the
defendant to check against such account to the extent of 80
per cent. of the amount borrowed, and for which said
defendant had executed its note to the plaintiff, and the
plaintiff retained out of each loan to the defendant 20 per
cent. of the amount for which the defendant had given its
note to the plaintiff. That in addition to retaining the 20
per cent. on each loan, as aforesaid, the plaintiff
reserved, charged, and collected out of each and every loan
made by the plaintiff to the defendant, in advance, the
interest on the full amount of loan at the rate of 6 per
cent. per annum.
"That
each and every of said loans, and each and every of said
notes in renewal, including the three notes sued on in this
case and set out in the complaint, formed a part of a
series of loans and notes given by the defendant to the
plaintiff for such loans from time to time during the
period of time from June 12, 1908, to October 8, 1917, and
constituted one continuous transaction.
"That
the said defendant, the Wysong & Miles Company, on the 12th
day of June, 1908, borrowed from the plaintiff the sum of
$5,000, at 6 per cent. interest, due three months from that
date; but the plaintiff let the defendant have on said loan
and on the note given for said loan only $4,000, and
collected from the said defendant the interest on said sum
of $5,000 at the rate of 6 per cent. per annum.
"That
on the 7th day of October, 1908, the defendant borrowed
from the plaintiff the sum of $5,000 at 6 per cent., due in
90 days, and gave its note to the plaintiff for the sum of
$5,000; but that plaintiff let the said defendant
have on said note only the sum of $4,000, and charged and
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