Tuxbury v. Abbott , 59 Me. 466 ( 1871 )

Kent, J.

This case has been very elaborately and ably argued; but after a careful examination, it appears to us quite too free from doubt to require any extended opinion.

The defendant objects that the plaintiff cannot recover on his first count, because it does not set out the whole contract; nor upon his second, because it does.

The single question is whether, under the usury laws of 1857, c. 45, a plaintiff can have judgment for his debt and legal costs, when it appears by the contract itself or by evidence aliunde that more than six per cent is reserved. It makes no difference whether the extra interest is taken or reserved directly or indirectly, — whether this fact appears on the face of the written contract or by proof aliunde. It is the fact, and not the mode of proof, that is material.

By the statute, since the old law [making entirely void any usurious contract) was changed, the only effect of taking or reserving more than six per cent is that it cannot be recovered, and the damages are reduced; and when it has been paid, recovered back. The courts have even allowed a party to indorse the extra interest before trial to save costs. Cummings v. Blake, 29 Maine, 105; Hankerson v. Emery, 37 Maine, 16 ; Lumberman’s Bank v. Bearce, 41 Maine, 505; Knight v. Frank, 48 Maine, 320; Whitten v. Palmer, 50 Maine, 125. The only thing, then, in the nature of a penalty is loss and payment of costs. No one has questioned the right to recover the debt and legal interest. It is every day’s practice.

The objection that there can be no severance between the debt and interest and illegal interest is unsupported by authority. It is clearly within the rule of severance; because the consideration being good, the portion of the contract which is invalid and not recoverable can be ascertained and fixed without mistake. There is nothing that vitiates the whole. By the terms of the report

Defendants defaulted. Judgment for amount of note and costs, as stated in the report.

Appleton, C. J.; Waltok, DiceeRSON, BaRROWs, and Tap-ley, JJ., concurred.