Roberts v. Life Ins. Co. of Virginia
| Decision Date | 26 May 1896 |
| Citation | 24 S.E. 780,118 N.C. 429 |
| Parties | ROBERTS v. LIFE INS. CO. OF VIRGINIA. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Durham county; Starbuck, Judge.
Action by J. D. Roberts against the Life Insurance Company of Virginia to recover usurious interest paid by plaintiff. From a judgment in favor of plaintiff, both parties appeal. Affirmed.
Fuller Winston & Fuller, for appellant.
Manning & Foushee, for appellee.
This is an action to recover back usurious interest paid to the defendant by the plaintiff, commenced on the 11th day of March, 1895. It was admitted on the argument here that Miller v. Insurance Co. (at this term) 24 S.E. 484, decided all the matters involved in this case, except three: First, whether the plaintiff, being a nonresident, could maintain this action; secondly, whether this was a Virginia contract or a North Carolina contract; and, thirdly, as to whether the interest paid by plaintiff more than two years before the commencement of the action should be included in the recovery or not.
The answer to the second proposition will substantially answer the first. The defendant is a Virginia corporation, but, by comity, is doing an insurance business in this state, and has an office in the town of Durham, and an agent located at that place. The local agent negotiated this loan in Durham, which defendant alleges is a part of its business, and is authorized by its charter. All the interest on this loan was paid to the local agent in Durham, upon whom service of process in this case was served. It was a North Carolina contract.
The court had jurisdiction of the subject-matter and of the defendant by personal service, made according to law; and, as defendant failed to show authority for this contention, we are at a loss to know upon what ground it is put, and we must sustain the jurisdiction of the court. In Sherrill v Telegraph Co., 109 N.C. 527, 14 S.E. 94, and 116 N.C 655, 21 S.E. 429, and a number of other cases, similar to this, the courts have acted upon the idea that they had jurisdiction. But it does not appear in these cases that this question was directly presented. It may have been an oversight in the counsel in these cases not to do so. And, while these points are made in the case on appeal, we do not think they were very seriously relied on here.
The main point in the case, argued and relied on here, was the question of time for which the plaintiff should be allowed to recover; plaintiff contending that he should recover double the amount of all the usurious interest he had paid, and defendant contending that he should not be allowed to recover for any interest paid more than two years before the commencement of the action. The court held with the defendant on this point, and the plaintiff excepted. This contract, by which the plaintiff borrowed $900 from the defendant, was made in June, 1891, as plaintiff alleges; and plaintiff's right of action, therefore, rests upon section 3836 of the Code. The act of 1895 (chapter 69) was ratified on the 21st day of February, 1895; but it expressly provides that it is not to apply to any contracts entered into before its ratification. If the act of 1895 had applied, the contention of plaintiff would have been correct, as it provides for bringing an action to...
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