Augustus Perow Co. v. Lewiston Security Co. , 112 Me. 443 ( 1914 )

Bird, J.

This action on the case is brought under the provisions of R. S., Chap. 46, Sec. 2, as amended by Chap. 90, Public Laws, 1905 and Chap. 97, Public Laws, 1907, for the recovery of payments of interest alleged to have been made in excess of six per cent per annum in contravention of the provisions of these statutes.

The defendants held the note of plaintiff corporation, for borrowed money, secured by a mortgage of chattels. The plaintiff claims that the rate of interest reserved violates the statute. This is not controverted by defendants. The mortgage was foreclosed and after the period of redemption had expired, one of the defendants repaired to the place of business of plaintiff with an officer provided with process for replevin of the goods mortgaged. There is some difference in the accounts of the parties as to what was said but in view of subsequent occurrences and of the testimony of the officer, we conclude that the defendant declared that he had come for his money or the goods and, had a jury found otherwise, that their verdict could not be allowed to stand. Plaintiff corporation undertook to procure the money demanded, which was the sum defendants claimed due upon the note. Plaintiff later succeeded in obtaining the required sum, the goods in the meantime remaining in the custody of the officer. Upon receiving this sum, the defendant who had had the negotiations with plaintiff, delivered note and mortgage to plaintiff, having made and signed in due form upon the mortgage the following indorsement:—

“The ivithin mortgage and note Avhich it secures having been paid in full it is hereby discharged.”

Defendants assert that the transaction constituted a sale of the goods and not a payment of the note. To this, for the reasons already set forth, we do not assent. We conclude that plaintiff made payment of the amount due upon note and defendants Avaived their rights by foreclosure. Winchester v. Ball, 54 Maine, 558, 560; see also Greene v. Dingley, 24 Maine, 131, 137; Stetson v. Everett, 59 Maine, 376, 380; Dow v. Moor, 59 Maine, 118, 120; Phelps v. Kendrick, 105 Mass., 106.

Finding no error in the direction of the presiding Justice, the entry will be,

Motion and exceptions overruled.