Mylott v. Skinner , 1899 Pa. Super. LEXIS 224 ( 1899 )

Opinion by

Smith, J.,

The plaintiff borrowed $10.00 of the defendant, and gave his note for $11.00, payable in one month. He also gave the defendant an assignment of his wages for the month; but the defendant, instead of collecting the money thus assigned, authorized the plaintiff to receive it for him. At the end of the month, the plaintiff paid the defendant $11.00: the note and assignment were destroyed; the plaintiff received back $10.00 as a loan, gave a new note for $11.00, with an assignment of his month’s wages, and was again authorized to collect the money assigned. This process was repeated monthly for sixteen months, the amount of the loan being meantime increased to $15.00, for which the plaintiff gave his note for $16.50. During this period the plaintiff paid $5.00 for the loan of $10.00 for five months, and $16.50 for the loan of $15.00 for eleven months; an amount more than sufficient to pay the loans with legal interest.

The loan of $15.00, the note, the assignment, and the plaintiff’s authority to receive the money were renewed for the seventeenth month; but the plaintiff, having received his wages, refused to pay the note. The defendant, after writing some threatening letters to the plaintiff, began a criminal prosecution, charging him with embezzlement of the last month’s wages. The prosecution ended in failure, whereupon the plaintiff brought this action.

The case thus exhibits a scheme, on the part of the lender, to secure interest on the loan at the rate of ten per cent a month, and on default of payment to convert the borrower into an embezzler, and enforce collection through a criminal prosecution or the threat of one. It was, however, carried on so long, that when the prosecution was commenced an element.essential to its maintenance had been exhausted through the extinction, in law, of the indebtedness.

It is too well settled to require the citation of authorities that the transaction between the parties, though made to assume the guise of the payment of one loan and the creation of another, was in reality the monthly renewal of the original loan, at a usurious rate of interest; and that all payments in excess of lbgal interest are to be applied on the principal. Hence, when the last note was given the loan had been overpaid. No debt then existing, the assignment was without consideration, and the borrower could lawfully receive and retain the wages assigned.

Thus the prosecution undertaken by the defendant was without foundation. His animus in the premises appears with sufficient distinctness from his significant threat, twice repeated, to “ take summary proceedings ” against the plaintiff. With the absence of probable cause, the evidence exhibits the indicia of malice in a degree that warrants the verdict. The evidence complained of in the first specification was not without relevancy, as tending to throw light on the real character of the transaction. Even if it added nothing essential to the .plaintiff’s case, it clearly did the defendant no harm. The charge was accurate in its presentation of the law, and its references to the facts are fully justified by the evidence.

Judgment affirmed.