holding that the elements of a usury action include, inter alia, the presence of a loan and defining loan as “the delivery by one party and the receipt by the other party of a given sum of money, on an agreement, express or implied, to repay the sum lent, with or without interest”
How later courts described this case
- holding that the elements of a usury action include, inter alia, the presence of a loan and defining loan as “the delivery by one party and the receipt by the other party of a given sum of money, on an agreement, express or implied, to repay the sum lent, with or without interest”
- defining a “loan” as “ ‘a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows’ ” (emphasis added) (citation omitted)
- noting that “if there is any question as to the credibility of witnesses or the weight of evidence, [ ] summary judgment should be denied[.]”
- "Motions under Rules 12(b)(6) and 12(c) can be treated as summary judgment motions, the difference being that under Rules 12(b)(6) and 12(c
Written by the judges who cited it.
The opinion
Justice Higgins
dissenting in part.
I am in full accord with the well documented opinion except in one particular. The opinion, I think, correctly states the rule with respect to the penalty which the law permits the debtor to exact as a result of his usurious contract. The penalty *537 is the forfeiture of all interest. If any interest is actually paid, the debtor is entitled to recover twice the amount so paid.
The court correctly holds: (1) The contract here involved carries a usurious rate of interest; (2) “It becomes simply a loan which in law bears no interest.” The trial court by Findings of Fact No. 19 established, “That the plaintiff, Jonas W. Kessing Company, has heretofore paid to National Mortgage Corporation as interest (emphasis added) on the subject loan transaction the aggregate sum of Twenty Five Thousand and no/100 Dollars ($25,000.00) . . . .” The court says that the $25,000.00 paid, no interest being due, should be credited on the principal.
I have no trouble whatever following the opinion up to this point, but I do not agree with that part of the opinion which says “We hold, therefore, that the plaintiffs are not entitled to recover double the amount of the interest paid on this loan and that the trial court erred in so holding.” In my opinion legal interest cannot accrue on a contract which provides for the payment of usury and such payment when made entitles the payor to the return of the amount paid (or a credit on the principal debt) and an equal amount as a penalty for the illegal exaction.
I vote to affirm the judgment of the superior court.