Lorber v. Marshall , 124 Or. 272 ( 1928 )

In Banc. Requisites for the presence of usury are enumerated as follows in 39 Cyc. 919, paragraph D-1:

"(1) An unlawful intent; (2) the subject matter must be money or money's equivalent; (3) a loan or forbearance; (4) the sum loaned must be absolutely, not contingently, repayable; and (5) there must be an exaction for the use of the loan of something in excess of what is allowed by law."

To the same effect, see Teshner v. Roome, 106 Or. 382, 395 (210 P. 160, 212 P. 473); Coast Finance Corp. v. Powers,105 Or. 339, 343 (209 P. 614, 21 A.L.R. 855); Farrell v.Kirkwood, 69 Or. 413 (139 P. 110); Anderson v. Griffith,51 Or. 116 (93 P. 934); Balfour v. Davis, 14 Or. 47, 52 (12 P. 89).

The findings of the court are conclusive on this court as to the controverted facts. There is no allegation in the affirmative answer charging that plaintiff made a loan to defendants. On the contrary it appears that the promissory note was executed and delivered for other services. The making of a loan with the intent to take a rate of interest in excess of the statutory rate is an essential element of usury under all of the authorities.

The affirmative answer, after alleging the purchase by defendants from other parties of certain furniture in an apartment house for which they gave their promissory note for the sum of $13,683.70, payable in monthly installments of $600 each on the fifteenth day of each month with interest at 7 per cent per annum, payable monthly and the payment of said installments for thirteen months, their inability to pay the installment falling due on May 15, 1922, their desire to have the installments reduced from $600 to $400 per month, and the assignment of said note and balance due thereon to plaintiff prior to May 19, 1922, the date of the note involved in the instant action, alleges as follows:

"IV. At said time, said Lorber demanded payment of all of said note, and threatened that if all thereof was not paid, he would immediately foreclose his said mortgage, which foreclosure would entail upon the defendants a loss of $15,000 or more. Said threats were made for the sole purpose of intimidating the defendants and of coercing them into executing the promissory note mentioned in the complaint.

"V. Thereupon, at the insistence of said Lorber, and by reason of his said threat, and upon his promise that he would waive the May, 1922, payment on said first mentioned note, and would also reduce the future payments thereon to $400 per month, beginning with the month of June, 1922, and to prevent said foreclosure, and as a bonus, or additional interest upon the balance of said first named note, the defendants executed and delivered to plaintiff the note mentioned in the complaint.

"VI. That no other promise was made by the plaintiff, and no consideration passed to the defendants for the making of said promissory note."

An examination of these allegations clearly and conclusively discloses that no loan was made by the plaintiff to defendants and the court's findings are equivalent to a finding that there was no intent on the part of the plaintiff or defendants to take or give a usurious rate of interest.

The judgment is affirmed. AFFIRMED.