Waldner v. Bowdon State Bank

• Decision Date: 27 December 1904
• Citation: 13 N.D. 604,102 N.W. 169
• Parties: WALDNER v. BOWDON STATE BANK.
• Court: North Dakota Supreme Court

13 N.D. 604

102 N.W. 169

WALDNER

v.BOWDON STATE BANK.

Supreme Court of North Dakota.

Dec. 27, 1904.

Syllabus by the Court.

1. Under an objection to a complaint as not stating a cause of action, made for the first time at the trial after a witness is sworn, the complaint will be liberally construed, and all reasonable inferences from the facts stated will be indulged in to sustain the pleading.

2. Under such rule of construction, the complaint states a cause of action for the recovery of money paid as usury pursuant to a contract, in an action under section 4066, Rev. Codes 1899, although it does not expressly allege that such payments were knowingly made and received.

3. The admission of irrelevant testimony is not prejudicial error in cases where the party objecting to such evidence offers no proofs, and there is no conflict in the evidence received, and the evidence sustains the verdict without the irrelevant testimony.

4. Under section 4066, Rev. Codes 1899, pre-seribing the amount recoverable when usurious payments have been made, plaintiff may recover double the amount of all interest payments made, and not merely the excess over the lawful rate.

Appeal from District Court, Wells county; S. L. Glaspell, Judge.

Action by Joseph F. Waldner against the Bowdon State Bank. Judgment for plaintiff. Defendant appeals. Affirmed.

Lee Combs, for appellant. J. A. Callahan, for respondent.

MORGAN, C. J.

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 10 per cent. per annum, and that it was agreed between them that plaintiff should pay 12 per cent. per annum as interest on said sum of $315.70 on April 9, 1903, about 13 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 12 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, 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 can be recovered back by...