Quinn v. Van Raalte
| Decision Date | 30 July 1918 |
| Citation | 205 S.W. 59,276 Mo. 71 |
| Parties | MARGARET A. QUINN, Appellant, v. SIMON VAN RAALTE et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wm. T. Jones Judge.
Reversed (with directions).
Glendy B. Arnold for appellant.
(1.) Under the law and all the evidence the court would have been justified in peremptorily directing the jury to return a verdict for the plaintiff, as was requested by her at the close of the whole case. (2) Under the law and all the evidence the court would have been justified in peremptorily directing a finding by the jury that plaintiff's note was given for a loan of money, as was requested by plaintiff at the close of the whole case. (3) The instructions given on behalf of the plaintiff are correct declarations of law. (4) Where the maker gives his note for a loan the law conclusively presumes that he is the borrower and parole evidence is inadmissible to show that another, whose name does not appear on the note, was the borrower. Sparks v Transfer Co., 104 Mo. 531; 17 Cyc. 589. (5) This action must be prosecuted "by the borrower." R. S. 1909 sec. 7182. (6) The term "borrower" in the usury law designates the party bound by the original contract to pay the loan. Wright v. Clapp, 28 Hun, 7, 8; Schermerhorn v. Talman, 14 N.Y. 126; Wheelock v. Lee, 64 N.Y. 247. (7) A suit to recover usury may be prosecuted in the name of the real party in interest or in the name of a trustee of an express trust without joining the real party in interest. A trustee of an express trust is one with whom or in whose name a contract is made for the benefit of another. R. S. 1909, secs. 1729, 1730. (8) "The test of the real party in interest, as respects defendant, is not found in the question whether plaintiff is the person who is actually and substantially interested in the subject-matter of the action, but rather in the question whether a recovery by the plaintiff will fully protect defendant in the event of another action upon the same case." St. James Co. v. Security Trust Co., 81 N.Y.S. 739, 178 N.Y. 560; 30 Cyc. 84. (9) Although a third person, not a party to the action, may be entitled to a portion of the fruits of the action or all the fruits, yet as against a defendant, a plaintiff is a real party in interest if he shows the complete legal title to the cause of action asserted, so that he can legally discharge the defendant from his obligation. Guerney v. Moore, 131 Mo. 650; Peters v. Railroad, 24 Mo. 586; 30 Cyc. 78, 84. (10) Where the wife sells her real estate for money, the transaction amounts to a purchase of the money with her separate means within the Married Woman's Act of 1875, and the same cannot be disposed of by the husband as his property without her consent in writing. Rogers v. Bunk, 39 Mo. 560. (11) In order to reserve an available objection to the exclusion of evidence, an offer must be made at the time showing what evidence will be given if the witness is permitted to answer and all of the facts necessary to establish its admissibility. Jackson v. Hardin, 83 Mo. 187; Ruschdeberg v. Railroad, 161 Mo. 70. (12) The exclusion of evidence will not work a reversal for a defendant where it appears that the evidence excluded would not establish the defense relied on. State ex rel. v. Leland, 82 Mo. 265; Kraxberger v. Porter, 91 Mo. 408. (13) Where an objection to testimony on untenable grounds is sustained, the exception will be overruled if the objection is sustainable on any other ground. 1 Wigmore on Evidence, sec. 18; Eschbach v. Hurtt, 47 Md. 61, 65. (14) Plaintiff's note was given for a loan of money. Burkitt v. McDonald, 26 Tex. Civ. App. 426; White v. Anderson, 164 Mo.App. 138; Wormley v. Hamburg, 46 Ia. 144; Sparks v. Robinson, 66 Ark. 460; Starkweather v. Prince, 1 MacArthur, 144; Heytle v. Logan, 1 A. K. Marshall, 529. (15) "The transaction itself, not the intention of the parties, determines the question of usury." Osborne v. Payne, 111 Mo.App. 29; 39 Cyc. 920. (16) "If the transaction is a loan and the sum charged or exacted for the use of the money loaned exceeds the legal rate of interest, it is usury no matter what words it may be clothed in." White v. Anderson, 164 Mo.App. 132; Coleman v. Cole, 158 Mo. 253, 260; Kriebaum v. Yancy, 154 Mo. 67; Bell v. Mulholland, 90 Mo.App. 612; Talman v. Surety Co., 90 Mo.App. 274. (17) A holder who violates the civil and criminal provisions of the usury law cannot claim the rights of a holder in due course. Respondent violated the usury laws in his acquisition of plaintiff's note from his co-defendants. Hart v. Adler, 109 Ala. 467; Freeman v. Brittin, 17 N. J. L. (2 Har.) 191; Cook v. Pierce, 2 Houst. 499; 39 Cyc. 997; Van Schaach v. Stafford, 29 Mass. (12 Pick.) 565; Merchants & Planters Bank v. Scarrett, 77 S.C. 141. (18) The legal effect of Sec. 7182, R. S. 1909, is to render contracts tainted with usury null and void to the extent of the usury. McDonnell v. Bldg. Assn., 175 Mo. 272; Montany v. Rock, 10 Mo. 506; Osborne v. Fridrich, 134 Mo.App. 449; Arbuthnot v. Bldg. Assn., 98 Mo.App. 388; Adler & Sons Col. Co. v. Corl, 155 Mo. 154; Ranson v. Hays, 39 Mo. 445; Corby v. Bean, 44 Mo. 379; Hennery v. Marksberry, 57 Mo. 399; Ferguson v. Soden, 111 Mo. 208. (19) Void provisions or portions of a contract confer no legal rights on the parties or their assigns. Comings v. Leedy, 114 Mo. 478; Erhardt v. Robinson, 78 Mo.App. 404; R. S. 1909, secs. 7182, 7183.
Stern & Haberman, Ryan & Thompson, Morton Jourdan and Thomas M. Pierce, for respondent.
(1) The court below was right in granting the new trial on the first ground assigned in its opinion, namely, excluding evidence to show plaintiff was not the real party in interest. Winslow Co. v. McCully Co., 169 Mo. 242; Weber v. Collins, 139 Mo. 507; Kelly v. Thuey, 102 Mo. 528; Hartzell v. Crumb, 90 Mo. 639; Higgins v. Dellinger, 22 Mo. 397; Williams v. Whitlock, 14 Mo. 560; Snyder v. Crutcher, 137 Mo.App. 130. The Mersman & Excelsior Company answer alleged that their transactions were with Quinn. The evidence as to real party in interest was, however, admissible under our general denial. Bolton v. Mo. Pac. Ry. Co., 172 Mo. 102; Greenway v. James, 34 Mo. 326. (2) The court properly granted a new trial for the second reason assigned in its opinion, namely, that the main instruction given for plaintiff was erroneous, in that it did not sufficiently cover the defendants' case though it undertook to cover the entire case, no instruction covering Van Raalte's side having been given. Enloe v. Car and Foundry Co., 240 Mo. 449; Jones v. Jones, 57 Mo. 142; Fine v. Public Schools, 39 Mo. 67; Sawyer v. Railroad, 37 Mo. 263; Hohstadt v. Daggs, 50 Mo.App. 240; Hayner v. Churchill, 29 Mo.App. 676; Bolland Co. v. Williams, 164 F. 668. (3) The contention that the court should have directed a verdict for appellant against respondent has no merit in law or on the facts. (a) Upon the credible oral, and the undisputed documentary, evidence the plaintiff failed to sustain her burden as to this respondent; (b) That if the court should hold she made (if the real party) a prima-facie case against this respondent, the case was bound to go to the jury and in no event was she entitled to a directed verdict. Stewart v. Outhwaite, 141 Mo. 573; Barker v. Publishing Co., 152 Mo.App. 722; Bank v. Hammond, 124 Mo.App. 181. (4) The transaction between Quinn and the Excelsior Company & Mersman was a legitimate purchase by the company and re-sale; there was no usury. Long v. Israel, 19 Va. (9 Leigh) 556; Farmers Loan & Trust Co. v. Smith, Clarke's Chancery (N. Y.) 540; Graeme v. Adams, 23 Grattan, 234; Bank v. Waggener, 9 Peters, 399; Hogg v. Ruffner, 1 Black, 118. (5) Respondent was a holder in due course for value, hence protected in his ownership of the note even had there been usury in the transaction between Quinn and the Excelsior Company. Appellant abandoned her count charging respondent as a lender of the money, and sought to hold him as a transferee of the note. Schlesinger v. Lehmaier, 191 N.Y. 73; Cromwell v. County of Sac, 96 U.S. 59. The note was not void, as contended by appellant, even though there was usury in its inception. Coleman v. Cole, 158 Mo. 260; Adler Co. v. Corl, 155 Mo. 154; Bank v. Harrison, 57 Mo. 503. No mere suspicion, or knowledge of circumstances that would excite suspicion, or indeed gross negligence on the part of a buyer of negotiable paper at time of purchase, will affect the rights of a transferee for value before maturity. There must be mala fides. Mayes v. Robinson, 93 Mo. 122; Hamilton v. Marks, 63 Mo. 171; 39 Cyc. 1078. (6) The court should have granted the new trial because of: (a) The refusal of respondent's instructions; (b) Respondent's theory of the case having been quite ignored by the refusal of his instructions. King v. Wabash Railroad, 211 Mo. 15; Wilmot v. Corrigan Co., 106 Mo. 549; Ridins v. Ridins, 29 Mo. 470; Bruce v. Wolf, 102 Mo.App. 390; Kraft v. McBoyd, 32 Mo.App. 399. (7) The purchase of a note from an endorsee at a discount is not usury. Secs. 9997, 10022, 10026, R. S. 1909; Coleman v. Cole, 158 Mo. 260; State ex rel. v. Boatmen's Savings Institution, 58 Mo. 193; Durant v. Banta, 27 N. J. L. 632; Sherman v. Blackman, 24 Ill. 345; 39 Cyc. 932-934. (8) The court should have granted the new trial because of perjury committed by the witness Quinn in testifying he visited Van Raalte twice in May, 1909, in company with Mersman.
This is an action based on Section 7182, Revised Statutes 1909, to recover for usury. It arises out of a real estate transaction between the plaintiff and the defendants, Simon Van Raalte Otto L. Mersman, and the Excelsior Realty Company. The amount sued for, with interest, is $ 21,000. A trial before a jury...
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