Cheapstead v. Frank , 71 Ga. 549 ( 1884 )

Hall, Justice.

The question in this case was, whether the notes, the foundation of this suit, were without any consideration to support them. They were given in settlement of a loan at usurious rates of interest. The defendant contended that they were for a balance claimed to be due on this original transaction that she had paid the entire amount of the loan, together with the lawful interest due thereon. The plaintiff insisted that the original contract was purged of the usury, and that these notes were given for the balance found to be due when this had been done, including certain fees and costs which had been paid to an attorney, who had instituted proceedings to collect the original debt. It did not appear that the defendant had recognized her liability for this latter sum previous to the time the present notes were given, or that she had in any manner undertaken to pay it, or was legally liable therefor. It was admitted that there was usury in the origina] contract. The evidence as to the consideration of these notea was in direct conflict, and appears to have been pretty evenly balanced, with perhaps a preponderance in favor of defendant’s account of the matter. It seems that these three notes, given for the first, loan, were payable at different times; that the first note that fell due was paid and delivered to the maker; that at the same time a large credit was placed on the second note; that at different times two other credits were made on this, and the remaining note, two hundred dollars at one time and four hundred, and twenty-five dollars at another time; and that, when the notes sued on were given, two hundred dollars were paid in cash. There was no direction as to how these various payments should be appropriated. They were not paid under any express contract to keep down interest or to satisfy the usury charged. The plaintiff insisted that the payments were made to satisfy the usury, and that, as more than six months had elapsed before this defence was set up to the present suit, the claim that the note was usurious was barred by the statute of limitations. The court was requested to charge the jury to that effect, but declined so to do, and charged that directly the reverse of this was the law.

Both the refusal to charge as requested, and the charge as given, were proper under the law. 60 Ga., 665; 42 Ib., 451; Code, §2794; 22 Ga., 193 ; 57 Ib., 438 ; 54 Ib., 190. This last case is in point as to the division of the debts into separate notes. The statute of limitations relied upon to defeat this defence is alone applicable to suits brought to recover usury which has been paid, or to a set-off claiming such a demand; and the case relied upon by plaintiff, 64 Ga., 510, as opposed to this view, sustains it, as will be evident, when reference is had to the decision in 61 Ga., 38, cited by the court as governing that case.

It is-insisted that the charge was erroneous as to the credits, because that there was no contest as to any of them, except one, and that this should have been distinguished from the others, and the charge should have noted that distinction, and should not have submitted to the jury to pass upon the entire amount and number of these credits, without directing their attention specially to the question made upon this one. The record does not show that any such point was made or decided by the court below ; indeed, it is apparent that such was not the case, and it is scarcely necessary to remark, that it is not properly here for determination on this writ of error.

Judgment affirmed.