Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-12-28
CAN RECOVER DOUBLE INTEREST

CAN RECOVER DOUBLE INTEREST
Supreme Court CONSTITUTES the Law In
An Action Brought on a luxurious
Contract to Recover Double Amount
Of Interest Paid.
The supreme court has handed down
an important decision in the case of
Joseph F. Waldner VS.. the Bowdon
State bank. This was an action by
Waldner to recover money paid to the
bank on usurious contract.
The complaint alleges that the de-
PENDANT 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, 1908, about thirteen
months after the NOTE was givD m.
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
$1S2.40, twice the amount paid as in
terest and bonus. The answer 10 a
general denial.
The jury found for the plaintiff for
the full amount claimed Defendant
appeals from the judgment,
An interesting question raised was
whether twice the entire sum paid as
interest on the usurious contract could
be recovered, or only twice the amount
paid above the legal rate. The court
holds that twice the entire sum paid
as interest may be recovered, and says
in the opinion:
by constituting section 4066 in its
entirety, we think the legislative inten-
ton was that all sums paid as interest,
whether within or beyond the provis-
ions of the statute, are recoverable in
double the sum paid. It does not seem
reasonable that the intention of the
legislature was that all interest was
forfeited when it rests in contract
merely and that the illegal part only
Is forfeited If the debtor has paid the
whole sum contracted to be paid as
interest. The words, the amount of
interest thus paid" refer to the great
er rate" which includes a legal and an
illegal rate, and they include the same
sums as are included in the words,
the entire interest," in the first part
of the section. When recovery is al
lowed for the sum paid as greater
rate it includes recovery for the
whole sum paid whether legal or il
legal, and is the same as the entire
interest contracted to be paid. Such
is the construction generally given to
statutory provisions identical or SINH
lar to section 1905 in other states, and
this seems to us correct, although
some cases hold to the contrary"
The judgment of the lower court is
affirmed. The syllabus is as follows:
1. Under an objection to a COM
plant as not stating q cause of action,
made for the first time at the trial
after witness is sworn, the complaint
will be literally construed, and all
reasonable differences from the facts
stated will be INDUCED in to sustain
the pleading.
2. Under such rule of construction;
the complaint states a cause of action
for the recovery of money paid az
, usury pursuant to q contract, in an
action under section 4066, Revised
Codes, although it does not expressly
, allege that such payments were know
ingly made and received.
3. The admission Of irrelevan,
testimony is not pre1udicial error IL
) cases where the party Directing t.
1 such evidence offers no proofs ant
2 there is no conflict in the evidence
= received, and the evidence sustain,
q the verdict without the irrelevan
r testimony.
+ 4. Under section 1905, Revise,
4 Codes, prescribing the amount recov
cradle when usurious payments hav
4 been made, plaintiff may recove
q double the amount of all interest pay
ments made, and not merely the ez
cess over the lawful rate.
Appeal from the district court O
!, Wells county; 8. L. Glaspell, judge.
;, Lee Combs, for appellant.
]. A. Callahan, for respondent.
- Opinion by Morgan, C. J.
n Reduced Lard and Pork Prices.