Waldner v. Bowden State Bank
| Decision Date | 27 December 1904 |
| Citation | 102 N.W. 169,13 N.D. 604 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Wells county; Glaspell, J.
Action by Joseph F. Waldner against the Bowden State Bank. Judgment for plaintiff. Defendant appeals.
Affirmed.
Lee Combs, for appellant.
Under section 4066, Rev. Codes 1899, the plaintiff must allege that the usurious interest was knowingly taken. The statute is penal, and the illegal contract must be precisely set forth. Blaine v. Curtis, 59 Vt. 120, 59 Am. Rep. 702; Livermore v. Boswell, 4 Mass. 437; Morrill v Fuller, 7 Johns. 402; Schuyler Nat'l Bank v Bollung, 40 N.W. 411; Henderson National Bank v. Aleves 15 S.W. 132.
Failure to demur to a complaint does not waive the right to urge its insufficiency thereafter. James River Nat'l Bank v Purchase et al., 9 N.D. 280, 83 N.W. 7.
It was error to allow the witness Nichols to testify that the bank charged a usurious rate of interest on all of its loans. In civil actions evidence of transactions similar to that under investigation is not admissible where there is no charge of fraud. Tallman v. Kimball, 74 Hun, 279, 26 N.Y.S. 810; Hoxie v. Home Insurance Co., 32 Conn. 21; Elliott v. Lyman, 85 Mass. 110; Lynn v. Gilman, 46 Mich. 628, 10 N.W. 46; Central Ry. Co. v. Brunson, 63 Ga. 504; True v. Sanborn, 27 N.H. 383; Ross v. Ackerman, 46 N.Y. 210; McGuire v. Kenefich, 82 N.W. 485; Ottillie v. Waechter et al., 33 Wis. 252; Russell v. Hearne, 18 S.E. 711; Hartman v. Evans, 18 S.E. 810.
The intent to take usurious interest must have been in full contemplation of both parties to the transaction. Tyler on Usury, 103.
To work a forfeiture, under the statute, there must have been an agreement for usury. Hawk v. Syndaker, 86 Ill. 197; Sexton v. Murdock, 36 Ia. 516; Dodds et al. v. McCormick Harvesting Mach. Co., 87 N.W. 911.
The court erred in instructing the jury that plaintiff was entitled to recover twice the amount of interest and twice the excessive usurious interest received by the defendant. The verdict could only be for double the excess of interest and not for double the entire interest reserved or paid. Such is the construction of section 5198, Revised Statutes of the United States, identical with section 4066, Rev. Codes of North Dakota. Bobo v. Peoples Nat'l Bank of Shelbyville, 21 S.W. 889; Garza v. Sullivan et al., 10 Tex. Civ. App. 184, 30 S.W. 240; Hintermeister v. Bank, 64 N.Y. 212; Knapp v. Briggs, 84 Mass. 551; Brown v. Bank, 72 Pa. 209; Hardin v. Trimmier, 30 S.C. 391, 8 S.E. 342.
J. A. Callahan, for respondent.
Great latitude is indulged to sustain a complaint assailed for the first time at the trial by an objection to the introduction of evidence on the ground that the complaint fails to state facts sufficient to constitute a cause of action. Heedleson et al. v. First Nat'l Bank of Tobias, 76 N.W. 570; Stutsman County v. Mansfield et al., 5 Dak. 78, 37 N.W. 304; Whitbeck v. Sees, 10 S.D. 417, 73 N.W. 915.
Where a complaint fails to state facts essential to a cause of action, which might be supplied by an amendment before or after judgment, and these facts are proved at the trial after the judge has refused to exclude the evidence of the plaintiff on the ground that the complaint does not state facts sufficient to constitute a cause of action, the defect in the complaint is no ground for a reversal of judgment rendered in favor of the plaintiff. Johnson v. Burnside, 3 S.D. 230, 52 N.W.. 1057; Lexington Bank v. Marsh, 95 N.W. 341; Strait v. City of Eureka, 96 N.W. 695.
An objection that a complaint does not state facts sufficient to constitute a cause of action made for the first time on trial, is unfavorable if the complaint contains a fair inference of the facts. Commonwealth Title Insurance & Trust Co. v. Dokko, 74 N.W. 891; Peterson v. Hopewell, 76 N.W. 451; Roberts v. Taylor, 27 N.W. 87; Marvin v. Weider, 48 N.W. 825.
The admission of testimony that the bank usually took usurious interest was without prejudice, as it appeared that usurious interest was charged in the particular transaction in controversy; that such interest was usually charged could not have influenced the jury. Sloan v. Citizens Nat'l Bank, 95 N.W. 480; Becker v. Vollmer, 95 N.W. 482.
Where a tender of money authorizes an agent to manage and control his lending business, he is presumed to know the manner in which the business will be conducted, and is chargeable with the acts of such agent, legal or illegal, which are within the scope of his authority; and charging usurious interest is within the scope of the authority of a cashier of a bank. Webb on Usury, 100, 101; Anderson v. Vallery, 58 N.W. 191; Cheney v. Eberhardt, 1 N.W. 197; Lewis v. Willoughby, 43 Minn. 307.
In actions brought to recover twice the usurious interest paid, the plaintiff may recover double the amount of interest actually paid, and is not confined to double the usury paid. Webb on Usury, 604; Schuyler Nat'l Bank v. Bollong, 45 N.W. 164, 56 N.W. 209; National Bank v. Davis, 8 Bliss 100; 1 National Bank Cas. 350; National Bank v. Trimble, 40 Ohio St. 209; Calgin v. City National Bank, 40 S.W. 634; Second National Bank v. Morgen, 16 Pa. 199, 30 A. 957; Osborn v. First Nat'l Bank, 34 A. 858; Bank v. Trumble, 40 Ohio St. 629; Bank v. Karmany, 98 Pa. 65; Bank v. Alves, 15 S.W. 132; Wiley v. Starbuck, 44 Ind. 298.
Action to recover a judgment for money paid to the defendant by plaintiff on a usurious contract. The complaint alleges that the defendant loaned plaintiff $ 265, and that he gave it his note for $ 315, bearing interest at ten per cent. per annum, and that it was agreed between them that plaintiff should pay twelve per cent. per annum as interest on said sum of $ 315.70 on April 9, 1903, about thirteen months after the note was given. Plaintiff seeks to recover twice the amount of interest paid on the note, together with twice the $ 50 paid as bonus. Plaintiff asks judgment for $ 182.40--twice the amount paid as interest and bonus. The answer is a general denial. The jury found for the plaintiff for the full amount claimed. Defendant appeals from the judgment, and assigns as errors: (1) The admission of any evidence under the allegations of the complaint, for the reason that it fails to state that the usurious payment was knowingly made and received; (2) receiving evidence of other and independent usurious transactions between the defendant and other persons; (3) failure to charge the jury that the payment of the usury must have been knowingly made and received; (4) failure to charge the jury that plaintiff could recover only the excess of interest paid over and above the rate allowed by law.
The complaint does not allege expressly that usury was knowingly paid and accepted. It does state that the plaintiff and defendant entered into a contract under which the plaintiff received $ 265 as a loan from defendant, and that it was agreed between the parties that plaintiff was to pay $ 50 as a bonus thereon, in addition to twelve per cent. per annum on $ 315, the amount contracted to be paid according to the face of the note set forth in the complaint. The sufficiency of the complaint was not attacked by demurrer, but by an objection to the introduction of any evidence under it, made after the first witness was sworn. As against such objection, we have no doubt that it was properly overruled. As against an objection thus made, the complaint must be liberally construed, and it is only where there is a total want of sufficient allegations that it should be sustained. If a necessary fact is alleged by fair inference or intendment, the objection will be overruled. The allegation that the usurious payment was made pursuant to a contract that it should be paid is sufficient as against an objection so made. All the authorities favor liberal construction of a pleading when attacked by such motions. Stutsman Co. v. Mansfield, 5 Dak. 78, 37 N.W. 304; Commonwealth Title Insurance Co. v. Dokko, 71 Minn. 533, 74 N.W. 891; Peterson v. Hopewell, 55 Neb. 670, 76 N.W. 451; Whitbeck v. Sees, 10 S.D. 417, 73 N.W. 915. The complaint, liberally construed, shows that both parties intended to contract for payment of usurious interest, and that it was paid and received knowingly and pursuant to such contract.
Evidence was admitted over objection that the defendant was accustomed to take usury, on all loans made by it, and evidence was received to the effect that usury was accepted by defendant on loans other than the one in suit. In case defendant had offered testimony tending to deny the plaintiff's evidence that the loan in suit was usurious, its admission might have been prejudicial error, but such a case is not before us for consideration. In this case the defendant offered no evidence at all. As we look at the evidence, it would have warranted a direction of a verdict for the plaintiff by the court. Under such circumstances, if error at all, it was error without prejudice to admit this evidence. Donley v. Camp, 22 Ala. 659, 58 Am. Dec. 274; Sloan v. Citizens' National Bank (Neb.) 95 N.W. 480.
The court did not in express words instruct the jury that the usurious payments must have been knowingly made and received before the plaintiff could recover. No such instruction was requested, which is a sufficient reason for denying defendant's assignment on that ground in this court. The charge, however, in effect, informed the jury that the receiving and giving of usury must be knowingly done, before plaintiff could recover. It stated that the giving and taking of usury must be pursuant to a contract that usury payments were intended. Section 4066, Rev. Codes 1899, prescribing under what circumstances and conditions payments of usury...
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