Hollowell v. Southern Building & Loan Ass'n

26 S.E. 781, 120 N.C. 286

• Court: Supreme Court of North Carolina
• Decided: February 5, 1897
• Status: Published

Opinion

Eubches, J.:

It is alleged in tbe complaint that the plaintiff borrowed of the defendant $1,000, which sum had been paid off and satisfied by plaintiff before the commencement of this action. That defendant charged plaintiff $5 as interest and $12 as dues, to be paid on the last Saturday in each month. That plaintiff continued to pay this interest and these dues, as required by the contract of loans, until the first of July, 1894, when he bad paid the defendant $450.60. This left, as defendant contended, the sum of $730.97 which the plaintiff paid to the defendant — making the sum of $181.57 he had paid to defendant for the loan of $1,000 for 14 months and 21 days. Plaintiff then claims that he is entitled to recover of the defendant $363.14 —this being double the amount of interest paid by him to defendant association. To this complaint the defendant demurs. The court overruled the demurrer, gave judgment for plaintiff and defendant appealed.

This court has decided that whatever is collected over and above 6 per cent., whether called interest or “dues,” is, in fact, interest and usurious. Meroney v. B. & L. A., 116 N. C., 882; Rowland v. B. & L. A., 115 N. C., 825; Miller v. Ins. Co., 118 N. C., 612; Roberts v. Ins. Co., 118 N. C., 429. That a' member of the association may be a borrower from the association, and any charges made against him in excess of the lawful rate of interest, whether called fines, charges, dues or interest, are, in fact, interest and usurious. Strauss v. B. & L. A., 117 N. C., 308; and 118 N. C., 556. Whenever more than the lawful rate of interest is charged it is usurious,' and the party paying it may recover back from the party to whom it is paid double the amount of interest so paid by him. Code, Sec. 3638. If we follow the logic of these authorities the judgment must be affirmed.

Tbe defendant cites us to tbe case of Latham v. B. & L. A., 77 N. C., 145, as authority for sustaining tbe demurrer. That action vas brought to recover back $92.04 wrongfully paid to tbe defendant through a mistake of fact. The court found that this money was not paid under a mistake of fact and that the plaintiff could not recover. And'this court sustained the judgment below. So, it will be seen, that this case is clearly distinguishable from Latham’s case, supra. It is true that, in the discussion of the case of Latham, there is an obiter that seems to te very much on the line of the defence in this case. But this dietum is not in harmony with the authorities cited above, if it should be construed to sustain the demurrer, and, if allowed, the construction contended for by defendant, it vitiates and renders void Section 3836 of The Gode, as that dictum is put upon the ground that thcs courts will not lend their aid to parties in pa/ri delieto, while the Statute (Gode, Sec. 3836) expressly provides that a party who has so paid usurious interest (and is in pari delieto) may recover double the amount he has so paid. There is no error.

No Error.