Action by the Planters' National Bank of Virginia against the Wysong & Miles Com
pany 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 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 here by 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 counter-claimed, 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 m 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 he 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.
"(0) 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 defend-ant have on said note only the sum of $4,000, and charged and collected from the defendant the interest on the sum of $5,000 at 6 per cent.
"That on the 14th day of January, 1909, the defendant borrowed from the plaintiff the sum of $5,000, at 6 per cent., due in 90 days, and gave the plaintiff a note of the defendant for $5,000; but the plaintiff let the defendant have on said note only the sum of $4,000, and collected from the defendant the interest on $5,000 at 6 per cent.
"That the said defendant, at various times, and every few months during said period of time from the 12th day of June, 1908, to the 8th day of October, 1917, borrowed other large sums of money from the plaintiff, and gave...
