Thomas v. Burnce
| Decision Date | 03 March 1916 |
| Citation | 111 N.E. 871,223 Mass. 311 |
| Parties | THOMAS v. BURNCE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County.
Suit in equity by Benjamin M. Thomas against Michael Burnce. From a decree sustaining the demurrer and dismissing his bill, plaintiff appeals. Decree revoked, and demurrer overruled.
The bill of complaint is as follows:
Plaintiff says:
1. That defendant is and has been since prior to the enactment of chapter 727 of the Acts of 1911 engaged in the business of making loans of three hundred dollars or under, the amount to be paid upon said loans for interest and expenses exceeding in the aggregate an amount equal to twelve per cent. per annum upon the sums loaned.
2. That defendant has never received from the Supervisor of Small Loans a license to engage in said business as required by said chapter.
3. That prior to the enactment of said chapter defendant had lent plaintiff certain sums of money and held certain notes signed by plaintiff.
4. That since the enactment of said chapter defendant at various times has lent plaintiff divers sums of money, none of said sums exceeding three hundred dollars in amount, and has been charging plaintiff for interest and expenses a higher rate than that allowed by said chapter and regulations made thereunder, to wit, seven and one-half per cent. per month.
5. That previous to the enactment of said chapter the notes which plaintiff signed at the request of the defendant correspond with the amounts actually lent to him by the defendant, each note being for a sum less than three hundred dollars; but that after the enactment of said chapter defendant, desiring to conceal the fact that the loans were of sums smaller than three hundred dollars in order that he might evade liability under said chapter, declined to make out notes which corresponded to the amounts of the sums lent, but instead added the amounts of the loans to the amounts already owed him by the plaintiff and so divided the total indebtedness that the notes actually signed by plaintiff were for sums larger than three hundred dollars.
6. That plaintiff consented thereto, being ignorant of his rights or of the liabilities of the defendant under said chapter.
7. That since the enactment of said chapter plaintiff has paid to defendant upon loans to which said chapter applies greater rates of interest or amounts for expenses than are allowed under the provisions of said chapter.
8. That plaintiff now has in his possession three promissory notes signed by him payable to the order of the defendant, copies whereof are hereto annexed and marked A, B, and C, respectively; that as said notes are negotiable he does not desire to return them to defendant but he hereby tenders them into court to await the decree of the court.
Wherefore the plaintiff prays:
1. That the defendant be ordered to enter into an accounting with the plaintiff and to pay over to him the amounts which plaintiff has paid as interest or for expenses in excess of the rates allowed by said chapter.
2. That said notes may be declared void and cancelled.
3. That a special precept of attachment issue directing that the real estate of the defendant to the value of five thousand dollars be attached.
4. For such other and further relief as may seem meet and just.
Reuben Forknall and Michael J. Mulkern, both of Boston, for appellant.
William M. Noble and David A. Marshall, both of Boston, for appellee.
The facts intended to be stated in the bill of complaint are that the plaintiff before July 9, 1911, the day of the enactment of chapter 727 of the Acts of 1911, was a borrower and the defendant a lender of sums of money less than three hundred dollars at rates of interest greater than is permitted by section 3 of that act; that before said act with each loan a note was given in amount corresponding to the sum of money actually lent; that after the enactment of the act the plaintiff continued to borrow and the defendant to loan as before sums of money in each instance less than three hundred dollars at rates of interest prohibited by law but because the defendant was not licensed to make loans as in manner and form made, and was in so doing liable to the imposition upon him of fine or imprisonment or of both under the provision of section 17 of said act thereafter whenever a new loan of less than three hundred dollars was made at a rate of interest greater than was permitted under section 3 of said act, a note was given not for the sum then actually lent but in amount to include all sums previously lent with the...
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