Tobin v. Neuman

• Decision Date: 14 April 1925
• Docket Number: No. 18875.,18875.
• Citation: 271 S.W. 842
• Parties: TOBIN v. NEUMAN et al.
• Court: Missouri Court of Appeals

271 S.W. 842

TOBIN v. NEUMAN et al.

No. 18875.

St. Louis Court of Appeals. Missouri.

April 14, 1925.

Rehearing Denied May 12, 1925.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by John C. Tobin, trustee in bankruptcy of Joe Rodman and Jake Shanker, individually and as copartners trading and doing business under the name and style of Rodman & Shanker, against Leon Neuman, Leon Neuman, trading as Leon the Tailor, and the Columbia Terminals Company. Judgment for defendants, and plaintiff appeals. Affirmed.

Arthur V. Lashly and Wayne Ely, both of St. Louis, for appellant.

George H. Moore and Ernest A. Green, both of St. Louis, for respondents.

SUTTON, C.

This is an action in replevin for the recovery of certain lots of cloth pledged to the defendant Leon Neuman, trading as Leon the Tailor, to secure the payment of a promissory note for $2,700, with interest after maturity at 6 per cent. per annum, made by Joe Rodman and Jake Shanker, doing business under the firm name of Rodman & Shanker. At the time the note and pledge were executed, the cloth was placed in storage by defendant Neuman, with the defendant Columbia Terminals Company, and remained in storage with said company at the time this action was instituted. The cause was tried to the court without a jury. The judgment was for the defendants. Plaintiff appeals.

Plaintiff insists that the undisputed evidence shows that defendant Neuman exacted usurious interest for the loan or indebtedness to secure which the pledge of the cloth sued for was given, and that therefore said pledge is under the statute invalid and void, and that the judgment of the court below should be reversed and the cause remanded, with directions to said court to give judgment in favor of the plaintiff.

In December, 1921, Rodman & Shanker applied to the defendant Neuman for a loan of $2,700, stating that they desired the loan for the purpose of paying off creditors who were pressing for the payment of overdue bills. The defendant had no money available to make the loan requested of him, and he so informed Rodman and Shanker. They thereupon requested defendant to procure a loan of $2,700 for them, and agreed that, if he would negotiate such loan for them, they would pay him a commission of 6 per cent. on the amount of the loan. Thereupon the defendant applied to the Reliable Loan & Investment Company for the loan desired, and procured from them a loan of $2,700 at the interest rate of 7 per cent. per annum for one year. The defendant gave the Loan & Investment Company his individual note for the amount of this loan, bearing interest at the rate of 8 per cent. per annum after maturity, and immediately turned over to Rodman & Shanker the amount of the loan so procured by him, and took from them therefor the note and pledge heretofore mentioned. Shanker was with the defendant when he negotiated and obtained the loan from the Loan & Investment Company and paid to said company at the time one year's interest in advance at the rate of 7 per cent. per annum, amounting to $189. About two months after this transaction was concluded Rodman & Shanker were adjudged bankrupt, and the plaintiff, John C. Tobin, became trustee of their estate in bankruptcy. The 6 per cent. commission agreed upon was never paid.

The plaintiff interprets the transaction as a loan made by the defendant to Rodman & Shanker, and insists that the exaction of 6 per cent. by way of commission in addition to the 7 per cent. paid by Rodman & Shanker to the Loan & Investment Company amounted to an usurious exaction. In argument the plaintiff says that Rodman & Shanker did not borrow any money from the Loan & Investment Company but that they borrowed it from the defendant and made their note in favor of the defendant therefor; that whether he borrowed the money to make the loan or whether he already had it available for that purpose makes no difference; but that, in either event, the fact remains that he exacted usurious( interest from Rodman I& Shanker for making the loan.

Section 6496, Revised Statutes 1919, which Is relied on here by the plaintiff to invalidate the pledge upon which defendant's right to the possession of the cloth sued for depends, is as follows:

"In actions for the enforcement of liens upon personal property pledged or mortgaged to secure indebtedness, or to maintain or secure possession of property so pledged or mortgaged, or in any other case when the...