Appeal
from Superior Court, Forsyth County; Clement, Judge.
Action
by Benet Polikoff, receiver of the Shields Furniture Company
against the Finance Service Company. From a judgment in favor
of plaintiff, defendant appeals.
Affirmed.
The
judgment in the Forsyth county court is as follows:
"This
cause coming on to be heard before His Honor, Oscar O
Efird, Judge Presiding
at the June 12, 1933, Term of the Forsyth County Court, and
being heard upon the report of Honorable H. R. Starbuck,
Referee heretofore appointed by this Court, and upon the
exceptions to the report filed by both the plaintiff and
the defendant as appears of record and the Court, after
careful consideration of the evidence taken before the
Referee and the exceptions signed by both the plaintiff and
the defendant, and after hearing and considering the
arguments and briefs of counsel, the court being of the
opinion that the Exceptions Nos. 1, 2 and 3 filed by the
defendant should be and the same are hereby overruled, and
that Exceptions 1, 2, 3, and 5 assigned by the plaintiff
should be, and they are hereby overruled, except as
hereinafter modified, and being of the further opinion that
the fourth assignment of error of the plaintiff should be
and the same is hereby sustained, and the court being of
the further opinion, and so finds, that the contracts are
governed by the laws of the State of North Carolina, and
that the plaintiff is entitled to recover and that the laws
of Maryland do not control for the reason that the
stipulation that the laws of Maryland should apply was made
for the purpose and with the intent of evading the usury
laws of the State of North Carolina, and, except as herein
modified, the report of the Referee is affirmed.
"Now,
Therefore, upon motion of Fred. S. Hutchins, attorney for the
plaintiff, it is considered, ordered, adjudged and decreed
that the plaintiff recover judgment against the defendant in
the sum of $2,711.00, as penalty for usury as provided by the
laws of North Carolina, with interest thereon from March 13,
1929, the date of the institution of the said suit, and for
the cost of the court to be taxed by the Clerk, including an
allowance of $100.00 to be paid H. R. Starbuck, Referee.
"It
is Further Ordered, Adjudged and Decreed, that the plaintiff
recover judgment against the bondsman, the Maryland Casualty
Company, on its undertaking on the discharge of the
attachment in the sum of $3,000.00 to be discharged upon the
payment of the amount of this judgment including all the cost
taxed herein against the defendant."
The
defendant made numerous exceptions and assignments of error,
and appealed to the superior court. The judgment in that
court is as follows:
"This
cause coming on to be heard and being heard before His
Honor, J. H. Clement, Judge Presiding at the October, 1933,
Term of the Superior Court of Forsyth County, on appeal
from the judgment of the Forsyth County Court, and it
having been agreed between counsel for the plaintiff and
defendant, that this judgment should be rendered out of
term, nunc pro tunc, and after argument of counsel and
consideration of the record, the court being of the opinion
that the assignments of error of the defendant from one to
six inclusive are without merit and should be overruled,
and that the judgment of the county court should be
affirmed.
"Now,
Therefore, upon motion of Fred S. Hutchins, attorney for
the plaintiff, it is ordered and decreed that the
assignments of error from one to six of the defendant,
appellant, are without merit and should be and are hereby
overruled and that the judgment of the County Court should
be and the same is hereby affirmed with the cost of the
appeal to be taxed against the defendant. And this cause is
remanded to the Forsyth County Court in accordance with
this opinion."
The
defendant appealed from this judgment to the Supreme Court.
The necessary exception and assignment of error for a
decision of the controversy will be set forth in the opinion.
CLARKSON
Justice.
The
only exception and assignment of error that we think
necessary to consider as determinative of this controversy is
as follows: "That the Forsyth County Court erred in
overruling the defendant's motion that the action be
dismissed, for that the evidence introduced by the plaintiff
does not make out a cause of action, and to the entry of the
judgment appearing in record." We see no error in the
ruling of the Forsyth county court, which was affirmed on
appeal to the superior court. The Forsyth county court in its
judgment found: "And being of the further opinion that
the fourth assignment of error of the plaintiff should be and
the same is hereby sustained, and the court being of the
further opinion, and so finds that the contracts are governed
by the laws of the State of North Carolina, and that the
plaintiff is entitled to recover and that the laws of
Maryland do not control for the reason that the stipulation
that the laws of Maryland should apply was made for the
purpose and with the intent of evading the usury laws of the
State of North Carolina."
The
fourth assignment of error of plaintiff, sustained by the
Forsyth county court, and affirmed on appeal to the superior
court, is as follows: "Fourth Exception--That the
Referee found as a conclusion of law that the contracts are
governed by the laws of the State of Maryland and, therefore
that the plaintiff is not entitled to recover as set out in
the Referee's Conclusion of Law No. 2. Whereas, he should
have found that the contracts are governed by the laws of the
State of North Carolina, and that the plaintiff is entitled
to recover and that the laws of Maryland do not apply for the
reason that the contract stipulation that the law of Maryland
should apply (is) in bad faith and for the purpose and intent
of evading the usury laws of the State of North
Carolina." (Italics...
