Rounteee v. Beinson

• Decision Date: 30 September 1887
• Citation: 3 S.E. 747,98 N.C. 107
• Court: North Carolina Supreme Court
• Parties: rounteee v. BEINSON.

3 S.E. 747

98 N.C. 107

rounteee

v.BEINSON.

Supreme Court of North Carolina.

September Term, 1887.

1. Pleading—Answer—New Matter.

Under Code N. C. § 243, par. 2, declaring that an answer must contain "a statement of any new matter constituting a defense or counter-claim, " a defense to an action of contract alleging a usurious consideration must state the particular facts showing usury.

2. Usury—Action on Usurious Bond—Recovery of Valid Debt.

When a note or bond taken for a valid debt, or to renew a valid note, is void for usury, the creditor may, in an action thereon, recover judgment for the valid debt, when the complaint alleges the facts constituting that debt; and an assignee of the note or bond has the same rights as the original creditor.¹

Appeal from superior court, Lenoir county.

Smith, C. J. The action, commenced on December 15, 1885, by the plaintiff, assignee of Robert H. Rountree, is to recover the amount due on the single bond of the defendant, as set out in the original complaint, and which became due on December 22, 1875, subject to certain specified credits. The defendant answered admitting the making of the bond, the partial payments mentioned, adding others to which he claims to be entitled as set-offs, denying the alleged transfer to the plaintiff, and setting up as a defense to the action an averment in general terms that "the bond was executed by this defendant to the said R. H. Rountree for an illegal and usurious consideration." Thereupon the complaint was amended, and as drawn sets out the original consideration as a balance due on a running account between the defendant and R. H. Rountree and Lewis Webb, bankers and commission merchants, doing business in the partnership name of Rountree & Webb at New Berne, in this state; the giving two promissory notes therefor, and the renewal of them; the dissolution of the firm, and the giving separate notes or bonds to each retiring partner for one moiety of what was due, the total being $871.11; and the renewal of the note given to the said Rountree, less certain credits, in the execution of the bond described in the first complaint, which was assigned to the plaintiff. Judgment is demanded for the sums due on the several causes of action mentioned, with costs accruing therein. The answer to the amended complaint, and the first seven articles thereof, reiterates and adopts the allegations contained in the first answer, and further alleges as a defense "that it appears from the original and amended complaint in the action that the plaintiff at the commencement of the action was the assignee of no legal or equitable claim against the defendant, except the note referred to in the original complaint." To this answer the plaintiff demurs, and assigns as ground thereof that (1) it fails to state what the illegal and usurious consideration and agreement were, its terms, and the nature of usury, etc.; (2) it does not state the facts from which the court can see and decide whether there was any illegal or usurious consideration, nor is there any statement of facts, but merely conclusions of law; and (3) for the insufficiency in not stating facts sufficient to constitute a defense.

Upon the issue thus joined between the parties the court proceeded to consider the same, and entered up the following judgment: "This cause corning on to be heard, and being heard upon the demurrer of the plaintiff to the answer of the defendant, it is ordered and adjudged by the court that in the present state of the pleadings, the defendant relying upon his answer, which does not set out the facts and particulars showing usurious transactions and agreements which entitled him to relief, the demurrer to the answer is sustained. It further appearing to the court that the defendant admits the ownership of the note by the plaintiff, and its execution and delivery by the defendant, and the...