Matthieson v. Schomberg

68 N.W. 416, 94 Wis. 1, 1896 Wisc. LEXIS 125

• Court: Wisconsin Supreme Court
• Decided: September 22, 1896
• Status: Published

Opinion

Cassoday, C. J.

Our statutes prescribe, in effect, that no person shall, directly or indirectly, take or receive, in money, goods, or things in action, or in any other way, any greater sum or any greater value, for the loan or forbearance of money, than at the rate of $10 upon $100 for one year, and that any agreement to pay more shall be valid and effectual only to secure the repayment of the principal sum loaned, without interest. E. S. secs. 1688-1690. They further prescribe, in effect, that “ every person who, for any such loan or forbearance, shall have paid or delivered any greater sum or value than is above allowed to be received,” may recover, in an action against the person who shall have taken or received the same, “treble the amount of the money so paid or value delivered, above the rate aforesaid, if such action shall be brought within one year after such payment or delivery.” E. S. sec. 1691. It is conceded that this action was brought within the year. It is contended, however, that the complaint fails to state a cause of action, and hence that the demurrer ore tenus should have been sustained. The precise objection is that the complaint does not allege that the $1,000 was paid “ for the use of the $2,500 for any specified time.” But it does allege, in effect, that the $2,500 was loaned, on time, as stated, and that a usurious sum of $1,000 was paid as a condition of making such loan and for the loan, and that the two notes, first mentioned, which by their terms drew no interest until after due, were given as evidence of the agreement. We think it is, in effect, alleged therein that the $950.83, which was one third of the verdict mentioned, was, in violation of the statutes cited, paid, in excess of the rate of interest therein authorized, “for the loan or forbearance” of the $2,500 mentioned. If counsel deemed the complaint indefinite and uncertain, their remedy was by motion and not by demurrer ore temos.

Exception is taken because the court excluded all testimony under the amended answer. It will be conceded that this exception must be overruled unless the amended answer states a complete or partial defense, and we are clearly of the opinion that it does not state either. True, the answer alleges that the $2,500 alleged to have been loaned was placed by the defendant in the hands of the plaintiffs, at their request, to be invested in certain real estate, and that the $1,000 was to be the defendant’s share of the profits growing out of such investment. But the affirmative allegations of the answer must be construed together,- and it appears from them that, at the time of advancing the $2,500 by the defendant, he took back from the plaintiffs two notes, aggregating the amount of $3,500, without interest until due, and that each was secured by collaterals. No partnership is alleged, nor any facts from which a partnership can be inferred. No joint adventure is alleged, nor anything from which such adventure can be inferred. True, the answer alleges that the plaintiffs represented to the defendant that there were at least $6,000 or $7,000 to be made as profits from the proposed investment; but it also appears from the facts alleged that the amount which the defendant was to receive was definitely fixed, and was in no way dependent upon the question whether the investment resulted in profit or loss. If it resulted in a profit after paying the notes held by the defendant, then the whole of such profit belonged to the plaintiffs; and if it resulted in a loss, then they alone were obliged to suffer the loss. The facts alleged and admitted in the answer show that the money advanced by the defendant was a loan by him to the plaintiffs, pure and simple, and that the same was made upon an agreement on the part of the plaintiffs to repay him, at the time of the maturity of the notes, respectively, all that he had advanced, together with $950.83 in excess of the rate of interest allowed by law, notwithstanding the pleader, in certain portions of the answer, draws a different conclusion from the facts so alleged and admitted.

The court properly refused to allow the defendant, after having entered upon the defense, to further amend his answer, especially as no suggestion was made as to the nature or character of the new facts proposed to be alleged by way of such further amendment. Besides, there is no exception to such ruling. ¶

The facts entitling the plaintiffs to recover, having not only been proved by them but admitted in the answer, the court very properly directed a verdict in favor of the plaintiffs.

By the Court.— The judgment of the circuit court is affirmed.