Sallade v. Albertson

1 Foster 75

This text of 1 Foster 75 (Sallade v. Albertson) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sallade v. Albertson, 1 Foster 75 (Pa. Super. Ct. 1873).

Opinion

Opinion by

Ross, P. J.

Though the demurrer, in form consists of four distinct grounds, it raises in fact but three specific inquiries.

i. tías the defendant an equity which will sustain his bill? 2. Has. he an adequate remedy at law ? and 3. Can a suit at law, based upon a statutory right of process, be restrained by injunction ?

It is hardly necessary to say, that in ruling upon the sufficiency of the demurrer, the court can look only at the averments in the bill, and must disregard the answer filed with the demurrer, which is not now technically before us. This remark is made, because upon the argument, the counsel for the defendant, inadvertently no doubt, to some extent predicated their reasoning upon some of the facts disclosed by the answer. Disregarding then, in the case, all else but the facts averred by the bill, and accepting [76]*76them as true, we will consider the three-fold objections presented by the demurrer.

i. Has the plaintiff disclosed in his bill such equitable right or rights as will sustain it ?

He avers that he borrowed money upon two separate occasions, of the defendant, paying for the loans, considerable sums as premiums. Both loans were secured by bills single. The first was dated January 2, 1866, payable one day after, in the sum of $3,000, from which the premium, -then deducted, was $144. The actual amount received by the plaintiff was $2,856, and judgment was entered upon it in the common pleas of Montgomery county, January 8, 1866. The second was dated February 18, 1866, payable one day after date, in the sum of $2,752.36. The premium deducted from this was $200, and the actual amount received by the plaintiff in this transaction was $2,552.36. Judgment was entered upon it in the district court of Philadelphia, May 17, 1870.

Usurious interest was demanded, from time to time, upon these loans, and it was secured by certain notes, executed at various times, and delivered by the plaintiffs’ agent to Mr. Albertson. These notes are dated at different periods, beginning March 18, 1868, and ending September 12, 1869. The amount of usury thus paid upon an actual loan of $5,408.36, from January 6, 1866, to September 12, 1870, was $2,321.5-8. To this sum is to be added the original premiums, amounting to $344) footing up the aggregate of the usury demanded and paid, to the enormous sum, compared with the loan, of $2,665.58.

The plaintiff further avers, that, including in his payments. these usurious sums, he has paid the defendant the principal of the loans with their legal interest in full; and he also alleges that at this time a scire facias is pending to revive the judgment entered in Montgomery county. The final allegations of the bill in paragraphs 8 and 9, are as follows: ■“That at the times of making the several payments on account of said loans, there was no specific ajopropriation of the money to the particular loan, but they went on account of said Sallade’s general indebtedness to said Albertson, as secured by the two judgments. The aggregate amount of the several payments being sufficient to pay the whole indebtedness due the said Albertson, together with the legal interest due thereon. That the accounts of these various payments and the evidence of all the complicated transactions in reference to said loans, are in the possession of the said Albertson, and they cannot be so severed as to be applicable exclusively to said suit on said $3,000 judgment, so that the said complainants cannot obtain adequate relief at laVv, upon the trial of the said scire facias. ’ ’

Upon these facts, is an equity disclosed ?

Assuming, as we are bound to do, that the averments in the bill are true, it appears, 1. That there was an usurious contract. 2. That the principal and legal interest due upon that contract have been paid in full. [77]*773. That the defendant is seeking to exact the payment of usurious amounts, by reviving the Montgomery judgment, for the purpose of collecting it by execution process; and 4. That the payments on account of the one judgment are so involved with the other, that in order to meet the merits of the case, the entire financial transactions of the parties must be investigated*

Under these facts the act of the defendant in prosecuting the sci.fa. with a view to the collection of the judgment, is a perversion of legal process. By its means Mr. Albertson would obtain a result forbidden by the law. It is provided by statute, that no matter what the contract as to the rate of interest may have been, the debtor shall not be required to pay the creditor the excess over the legal rate. The attempt to recover that •excess by legal process, is therefore an act contrary to law, while it is at the same time, prejudicial to the individual rights of Mr. Sallade. But where an act is at once contrary to law and prejudicial to the rights of an individual, then such an individual has an equity which will maintain a bill; and the statute expressly devolves power upon the court to exercise chancery power in such a case. It matters nothing whether the result is sought under legal forms or not. Equity will look at the purpose, and ■disregard the form of the act, against which the complainant seeks to be relieved. Lyons’ app., P. F. S. 15; Hunter’s appeal, 4 Wr. 161; Hagner v. Heyberger, 7 W. & S. 104. This principle has been extended to acts contrary to equity, as well as to law. Church v. Moore, 10 Barr 280; Stockdale v. Ullery, 1 Wr. 486; Kirkpatrick v. McDonald, 1 Jones 387.

It is very clear, therefore, that a bill averring that the defendant is seeking to exact usurious interest by legal process, or the application of common law, or statutory remedies, avers an act contrary to law, and prejudicial to the interests of the person from whom it is sought to be exacted ; .and that such person has an equity, which is disclosed by the bill, and which may be enforced by chancery process.

This conclusion is unquestionably correct upon principle. It does not lack adjudicated cases to sustain it. It has been ruled in Wister v. McManes, 4 P. F. S. 326, that the defendant in a judgment, given to,, secure usurious interest, is entitled to relief in equity, even after a court of law has refused to open the judgment. The same ruling exists in New York, 5 John Ch. Rep. 122.

2. But it is said that while an equity may be disclosed by the bill,, yet the plaintiff has an adequate remedy at law to which he must resort. It is unquestionably true that if, for an act contrary to law and prejudicial to individual right, there exists an adequate remedy at law, equity will .not intervene. This is too well settled to require autliority to sustain it. But it is clear that this plaintiff has no adequate remedy at law. It is •evident that in order to reach the result he can obtain by this bill, he must, as a preliminary step, make application to the courts to open these judgmeiits. Unless he should succeed in this, he will lose the premiums [78]*78paid on account of the loan. It is well settled that upon a scire facias to revive a judgment, usury paid at the lendition of the judgment cannot be shown as a defense. Lyle v. Williams, 15 S. & R. 131; McVeigh v. Liller, 7 Barr 279; Hall v. Boyd, 6 Barr 260; Harper v. Kean, 11 S. & R. 292. Therefore, the $344 would be lost, unless both judgments were opened, But the opening of a judgment is of grace, not of right. Wister v. McManes, supra.

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Hagner v. Heyberger
7 Watts & Serg. 104 (Supreme Court of Pennsylvania, 1844)
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4 Whart. 12 (Supreme Court of Pennsylvania, 1839)

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Bluebook (online)
1 Foster 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sallade-v-albertson-pactcomplmontgo-1873.