Life Insurance Co. of Virginia v. Smathers, 212 N.C. 40 (1937)

Sept. 22, 1937 · Supreme Court of North Carolina

212 N.C. 40

THE LIFE INSURANCE COMPANY OF VIRGINIA v. FRED I. SMATHERS et al.

(Filed 22 September, 1937.)

Usury § 2—

A sum paid an independent broker by tbe borrower to cover costs, commission, and expenses in securing- tbe loan, does not perforce render tbe loan usurious.

Appeal by defendants Fred I. Smathers and Rosamond L. Smathers from Clement, J., at July Term, 1937, of Buncombe.

Civil action to determine amount due on promissory note and to foreclose deed of trust given as security for payment thereof.

Defendants admit the execution of their $15,000 note to Bankers Trust & Title Insurance Company on 17 January, 1931. They contend, however, that same should be stripped of its interest-bearing quality (Waters v. Garris, 188 N. O., 305, 124 S. E., 334), and all interest paid thereon credited on the principal because of an alleged charge of usury amounting to $417.04 exacted at the,time of the making of said loan.

In a letter addressed to the Bankers Trust & Title Insurance Company under date of 15 January, 1931, and signed by the defendant Fred I. Smathers, it is stated: “I agree to furnish you fire insurance in an amount not less than $15,000 in a reliable fire insurance company acceptable to you and pay you the sum of $450.00, which I understand is to cover all costs, commission, and expense in securing said loan, and . . . if for any reason on your part this loan cannot be closed, you are not to charge me a fee for the preparation of the loan papers.”

At tbe close of all tbe evidence, tbe court directed a verdict against tbe defendants on tbeir plea of usury, thereby fixing tbe amount of tbe debt, and entered judgment of foreclosure.

Defendants Fred I. Smatbers and Rosamond L. Smatbers appeal, assigning errors.

Harkins, Van Winkle & Walton for plaintiff, appellee.

Alfred S. Barnard for defendants, appellants.

Stacy, C. J.

A careful perusal of tbe record leaves us with tbe impression tbat no reversible error was committed in tbe trial of tbe cause, or, at least, tbat none bas been made, to appear.

Tbe case of Loan Co. v. Yokley, 174 N. C., 573, 94 S. E., 102, cited and relied upon by defendants, is distinguishable, in that, in tbe Yokley case, supra, as stated in tbe opinion, it was “not a reasonable inference from tbe evidence . . . that tbe trust company was doing no more than charging a reasonable commission for negotiating a loan made by tbe annuity company.” Here, tbe defendant’s own letter is to tbe effect: I agree to pay tbe Bankers Trust tbe sum of $450.00, “which I understand is to cover all costs, commission, and expense in securing said loan.” See Ray v. Ins. Co., 207 N. C., 654, 178 S. E., 89; Hunter v. Realty Co., 210 N. C., 91, 185 S. E., 461.

Tbe result will not be disturbed.

No error.