Salo v. Nelson, 29483.

• Decision Date: 02 March 1945
• Docket Number: 29483.
• Parties: SALO v. NELSON.
• Court: Washington Supreme Court

156 P.2d 664

22 Wn.2d 525

SALO v. NELSON.

No. 29483.

Supreme Court of Washington

March 2, 1945

Department 1.

Action on a note by Victor Salo against Thomas Nelson, who filed a cross-complaint to offset half of the amount of the note and recover double the amount of interest paid and payable thereunder on the ground of usury. Judgment for plaintiff and defendant appeals.

Affirmed.

Appeal from Superior Court, Pacific County; John I. O'Phelan judge.

Fred M Bond, of South Bend, for appellant.

John J Langenbach, of Raymond, for respondent.

JEFFERS Justice.

This action was instituted by Victor Salo to recover the principal and interest due on a promissory note from the maker, Thomas Nelson. The note, introduced in evidence as plaintiff's exhibit A, is dated February 2, 1937, and is signed by Thomas Nelson. By the terms of this instrument, Thomas Nelson agreed to pay to the order of Victor Salo, sixty days after date, the sum of $200 with interest thereon at the rate of 8 per cent per annum from February 2, 1937, interest to be payable at maturity. Endorsed on the note, under date of July 13, 1942, is a payment of $50. In addition to the usual provisions, the complaint alleged that the payment of $50 on July 13, 1942, paid the interest to March 13, 1940.

Plaintiff demanded judgment against the defendant for the principal sum of $200, with interest thereon at 8 per cent per annum from March 13, 1940, and for his costs and attorney's fees. Defendant, by his answer, admitted that he executed and delivered this note to plaintiff and that on July 13, 1942, he paid the sum of $50 for interest, and he denied the other allegations of the complaint.

As an affirmative defense and cross-complaint, defendant alleged, in substance, as follows: That on February 2, 1937, at the time said note was executed, defendant did not secure from plaintiff any sum in excess of $100, it being agreed that the other $100 was for interest, or bonus, for the use of said $100, which agreement was illegal and contrary to law.

Defendant further alleged that said note, being for $200, is usurious in so far as $100 of the same is concerned, and that therefore this defendant is entitled, under the statutes of this state, to have offset, or recover, the sum of $100. In other words, there would be nothing due upon the principal of said note or the sum of $100 received.

Defendant further alleged that, having paid the sum of $50 upon the interest, he is entitled to receive from plaintiff double the amount of such interest, or the sum of $100; that, in addition thereto, he is entitled to receive double the amount of 8 per cent on $100, or $16, per year from February 2, 1937, or $112, making a total of $200; for which recovery is sought by defendant in his cross-complaint.

Plaintiff, by his reply, denied the affirmative matter set up in the cross-complaint.

The cause came on for trial Before the court and jury on May 16, 1944, and on said last-mentioned date the jury returned a verdict in favor of plaintiff for the sum of $200, together with interest thereon at 8 per cent per annum from March 15, 1940.

Defendant filed a motion for new trial, which was denied by an order entered June 22, 1944. No affidavits were filed in support of the motion for new trial. On the last day above mentioned, the court entered a judgment on the verdict.

Defendant has appealed from the judgment entered and assigns error in permitting appellant to be cross-examined, over his objection, as to what property he had at the time of trial; in refusing to submit to the jury the following special interrogatory, 'What amount does the jury find that the plaintiff delivered to the defendant'; in refusing to grant a new trial, and in entering judgment against appellant.

We shall first discuss appellant's second assignment of error based on the refusal of the court to submit to the jury the following special interrogatory, 'What amount does the jury find that the plaintiff delivered to the defendant on the promissory note?'

It is apparent that the question to be determined by the jury was whether or not at the time this note was executed, the appellant received from respondent $200 in cash or only $100 as claimed by appellant. While we are of the opinion that we could hold, strictly as a matter of law, based on the decisions of this court, that the trial court committed no error in refusing to submit this interrogatory to the jury, we will refer to enough of this record to show that even if this question were subject to the review by this court, there was no abuse of the court's discretion in this case.

Respondent, who is a fisherman and has lived at Ilwaco for many years, testified, in substance, that appellant, whom he had known for some years, came to his home in Ilwaco and wanted to borrow $200; that appellant filled out the note, on the date it bears, signed it and gave it to respondent; and that, at that time and place, respondent gave appellant $200, as evidenced by the note.

Respondent further testified that appellant never denied liability on the note; but, to the contrary, on at least three different occasions he admitted such liability in writing, as evidenced by three letters from appellant to respondent, dated July 1, 1942, September 16, 1942, and February 23, 1943; that appellant at the time of making the payment of $50 raised no question as to his liability on the note. This payment of $50 is the only payment ever made on the note, although repeated demands were made by respondent for payment.

Appellant admits that he made out the note and signed it, as testified to by respondent. Appellant also admits that on July 13, 1942, he paid $50 for interest.

Appellant's version of what transpired at respondent's home at the time this note was executed is shown by the following testimony of appellant:

'Q. State what your conversation was to Mr. Salo in regard to the loan? A. I went there to borrow $100 from him and he said he wanted $200 for the use of the $100, and also interest on the $200 Before he would loan me the $100. I wrote out the note to him. He said he had to get it down town; so I don't know where he got it, he went down town to get it and met me at the postoffice and gave me the $100.'

Appellant further testified that he received no money at respondent's home and that $100 was all he ever received from respondent for the note.

Mr. Farnsworth, a witness called by appellant, testified that he rode to Ilwaco that day with appellant in appellant's truck; that he got out down town and did not see appellant until some time later when appellant picked him up and they drove down near the post office; that appellant stopped the truck and got out and met respondent; that he saw respondent give appellant some money, he did not know the amount; that he did not hear what was said by appellant or respondent.

Respondent denies that he went down town to get the money for appellant, and he denies that he ever gave the appellant any money in the manner as testified to by appellant. He denies appellant's version of the transaction. He also stated...