Clark v. Hood System Industrial Bank of Reidsville, 200 N.C. 635 (1931)

April 15, 1931 · Supreme Court of North Carolina

200 N.C. 635

J. R. CLARK, Trading as J. R. CLARK MOTOR COMPANY, v. HOOD SYSTEM INDUSTRIAL BANK OF REIDSVILLE, NORTH CAROLINA.

(Filed 15 April, 1931.)

Usury C a — Complaint in this action to recover statutory penalty for usury held insufficient and demuiTer was properly allowed.

A complaint in an action to recover twice the amount of an usurious rate of interest is demurrable if there is no allegation that such interest had been actually paid, and in this ease held that allegations that defendant charged and received usury on a note discounted by plaintiff with defendant is insufficient to sustain the action for the statutory penalty.

Appeal by plaintiff from Finley, J., at November Term, 1930, of RociciNghaM.

Affirmed.

Tbis is an action to recover tbe statutory penalty for usury paid by plaintiff to defendant, to wit, twice tbe amount of interest paid on loans of money made by defendant to plaintiff.

Tbe action was beard on defendant’s demurrer to tbe complaint, for tbat tbe facts stated therein are not sufficient to constitute a cause of action.

From judgment sustaining tbe demurrer, and allowing plaintiff time witbin wbicb to amend bis complaint, plaintiff appealed to tbe Supreme Court.

P. T. Stiers for plaintiff.

Manly, Hendren & Womble and Brown & Trotter for defendant.

Per Curiam.

In tbe absence of allegations in tbe complaint tbat plaintiff paid to defendant as interest on loans of money made by defendant to plaintiff, sums in excess of six per centum per annum, tbe demurrer of defendant to tbe complaint was properly sustained. Allegations tbat defendant charged and received usury, on notes discounted by plaintiff with defendant, are not sufficient to constitute a cause of action on wbicb plaintiff is entitled to recover tbe statutory penalty for usury paid by plaintiff to defendant. Nor are allegations tbat defendant charged plaintiff interest in excess of six per cent on loans of money made by defendant to plaintiff, sufficient, without tbe further allegation tbat plaintiff has paid to defendant such interest.

Tbe statutory penalty for charging usury is tbe forfeiture of all interest on tbe loan; it is only when tbe borrower has paid usury to tbe lender of money, tbat be can recover in a civil action as tbe statm tory penalty for taking and receiving usury, twice tbe amount paid. C. S., 2306. McNeill v. Suggs, 199 N. C., 477, 154 S. E., 720; Briggs v. Bank, 197 N. C., 120, 147 S. E., 815; McKinney v. Sutphin, 196 N. C., 318, 145 S. E., 621; Pratt v. Mortgage Co., 196 N. C., 294, 145 S. E., 396; Ripple v. Mortgage Co., 193 N. C., 422, 137 S. E., 156; Sloan v. Insurance Co., 189 N. C., 690, 128 S. E., 2; Miller v. Dunn, 188 N. C., 397, 124 S. E., 746; Waters v. Garris, 188 N. C., 305, 124 S. E., 334.

It is significant that in the instant case plaintiff did not amend his complaint as he was allowed to do by the judgment, and thus cure the specific defect therein to which his attention was directed by the demurrer. The judgment is

Affirmed.