Reger v. O'Neal.
| Citation | 33 W.Va. 159 |
| Court | Supreme Court of West Virginia |
| Decision Date | 09 November 1889 |
| Parties | Reger v. O'Neal.*(Gbeen, Judge,absent) |
Where usurious interest has been paid upon a debt, and the debt, or any part of it, is unpaid, a court of equity, in stating the account between the parties, will credit upon the principal of what is unpaid whatever usurious interest has been paid, as of the date of its payment.
A note for the payment of a sum of money given bona fide for purchase-money for land, and not as a cover for a loan or forbearance of money, though it call for interest on that sum in excess of the rate allowed by law for the loan or forbearance of money, is not usurious. What is thus called "interest" is as much a part of the purchase-price of the land as the principal sum, and the rate of interest so called for will be enforced.
Where questions purely of fact are referred to a commissioner, his finding will be given great weight, though not as conclusive as the verdict of a jury, and should be sustained, unless plainly not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, when the findings of a commissioner have been approved by the court below. 4. Reversal of Decree Evidence.
Where the decree sought to be reversed is based on depositions which are conflicting, and of such doubtful and unsatisfactory character that different judges might reasonably disagree as to the facts proved thereby, or the proper conclusions to be deduced therefrom, the appellate court will decline to reverse the rinding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree, if it had acted on the cause in the first instance.
Dayton & Dayton, for appellant.
S. V. Woods for appellee.
Anthony Reger brought a chancery suit in the Circuit Court of Barbour county against Lemuel O'Neal and others to enforce a lien reserved upon a tract of land in that county for the payment of several notes executed by O'Neal to Reger, admitting that all said notes had been paid, except one for $1,000.00 which he alleged to be wholly unpaid. The defendant O'Neal demurred to the bill, and his demurrer was overruled. Be filed an answer alleging that one of said notes for $2,000.00 carried interest at seven per cent, from date, and that he had paid that interest, which he branded as usurious; and that on other notes after their maturity he had paid interest at the rate of eight per cent, per annum until the 1st of October, 1877; and that after that date, under an agreement with Reger, he had paid but six per cent.; and that he had paid all such interest annually; and that, if given credit for the usury paid, not only the other notes, but also that in suit, would be fully paid, and $53.75 in excess; and he demanded that such usury be applied to discharge that note, and, by way of affirmative relief, asked that the said excess of payment be decreed to him on the final hearing.
Afterwards, O'Neal filed a further answer, alleging that a gross mistake existed in the cause, in the fact that at the house of Joseph Baker he had paid Reger $535.00 on the note for $2,000.00 and took his receipt therefor, which he had lost, and paid other moneys on that note, in all $1,535.00 up to the 27th September, 1873; and that on the 27th of February, 1878, he and Reger entered into an agreement in which it was erroneously assumed that the sum of $1,000.00 was still due upon said note for $2,000.00, when in truth there only remained then due thereon, $465.00; and that, notwithstanding there was only that sum due on that note, he paid eight per cent, on said $1,000 until October 1, 1877, and thereafter six per cent., until payment of that note, in 1878 or 1879, and thus paid usurious interest on this $535.00 which he did not owe; that for eight or ten years he had paid all interest, legal and usurious, promptly each year; and he prays that this further answer be treated as a crossbill, and for affirmative relief.
The plaintiff filed a reply in writing to both these answers, denying that O'Neal had paid the money as claimed in his answers, and denying that he had by usury overpaid $53.75, and denying that there had been any mistake or miscalculation, and alleging that O'Neal had received credit for every dollar he had ever paid, whether at the residence of Joseph Baker or elsewhere; that the $2,000.00 note bore seven per cent. as part of the purchase price for land as shown by the deed. This reply further alleged that on 27th of February, 1878, by an agreement with O'Neal, he bound himself to extend the time of payment of said several notes, and that in consideration of such extension and $35.00 paid O'Neal he had agreed to waive and release all claim for usury paid.
The cause was referred to a commissioner, to audit the account between the parties, to report what usury, if any, had been paid, and what was due on the purchase-money note filed with the bill. Numerous depositions were taken by the commissioner. The commissioner's report rejected the alleged credit of $535.00, but did not decide as to the usury claimed by O'Neal, but submitted that matter to the court upon a report presenting it in five aspects, viz: (1) On the basis that O'Neal was entitled to credit for usury to 1st of October, 1877; (2) on the basis that he was entitled to credit for usury to 1st of October, 1876; (3) on the basis that he was not entitled to credit for usury paid on the $2,000.00 note till its maturity, and was entitled to the usury after maturity until 1st October, 1877; (4) On the same basis as third, except that it stopped usury 1st October, 1876; (5) on the basis that there was no usury to be allowed, as it was released by the agreement, 27th February, 1878. The plaintiff excepted to the report because he was charged with usury. The defendant excepted because the report did not allow him credit for the usury at the dates when paid, and because it ignored the $535.00 payment, and because of the aspects disallowing the usury. The Court adopted the first aspect of the report, finding a balance due from O'Neal, after crediting him with usury paid, of $164.13, and decreed that sum against O'Neal, and subjected the land to sale for it, thus disallowing credit for the $535.00. Thereupon O'Neal obtained this appeal.
As to the demurrer to the bill, no ground for it has been assigned, either in this or the Circuit Court, and no ground is now seen for sustaining it. An important question in the cause is, should this Court reverse the decree below for not allowing O'Neal credit for $535.00, which he claims to have paid on the note for $2,000.00 at Baker's residence? The evidence bearing upon this question is conflicting and uncertain, and it would serve no purpose to detail it at large. The receipt which, it is alleged, was given for it has been lost, though O'Neal presents other receipts and papers, and does not explain definitely how this was lost. Both O'Neal and Reger say that money was paid Reger at Baker's; but O'Neal says that it was on the $2,000.00 note, while Reger says it was paid on stock.
It may be true that such payment was made and applicable on that note, and it may be also true that O'Neal received credit for it in the many payments and transactions as to this debt from time to time during eight or ten years. Their business was transacted in an irregular way, neither being competent to draw papers or make entries or calculations, having to call on others to do this work. Reger states positively that O'Neal received credit for every dollar he ever paid, while O'Neal, after stating that he paid $530.00 or $535.00, on being asked if he had not received credit for it, replied: When asked if he meant to say that he had never received credit for the money paid at Baker's, he answered: It is not certain when this payment was made. In his answer O'Neal says it was "soon after the payment" of $665.00, the receipt for which was dated 1st of October, 1872, and in his deposition he says he paid it about the time the $2,000.00 note fell due, (1st October, 1872) or a day or two before the date of said receipt. After this payment, on the 28th day of February, 1878, Reger and O'Neal executed a writing under seal whereby Reger agreed to let O'Neal have the use of the money O'Neal owed him, (Reger) "four land notes to be paid as follows: The first note of two thousand dollars, subject to a credit of one thousand dollars, to be paid on or before the first day of October, 1878," and proceeding and fixing later dates for payment of three other notes.
Thus, this agreement recognized that at its date the note was subject to a credit of $1,000.00, whereas, if it was subject to a credit of $535.00, this would be untrue, or at that date it had, besides several indorsements of interest paid to 1st October, 1877, indorsements of $665.00, $331.00, and $4.00, making up the $1,000.00 credit. It seems strange that O'Neal should have signed an agreement recognizing the note as subject to a...
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