Michigan National Bank v. Hanner , 268 N.C. 668 ( 1966 )

151 S.E.2d 579 (1966) 268 N.C. 668

The MICHIGAN NATIONAL BANK
v.
John C. HANNER.

No. 540.

Supreme Court of North Carolina.

December 14, 1966.

Maupin, Taylor & Ellis and Frank W. Bullock, Jr., Raleigh, for plaintiff.

Vaughan S. Winborne, Raleigh, for defendant.

BRANCH, Justice.

The sole question presented by this appeal is: Did the court err in striking from defendant's amended answer the "further answer and counterclaim"?

In allowing the motion to strike from the amended answer the defendant's "further answer and counterclaim" the trial judge found, inter alia, "that a similar further answer and counterclaim in almost identical language was heretofore stricken by order of Honorable James H. Pou Bailey at the July 1965 Regular Civil Session, Wake Superior Court."

The power of one judge of the superior court is equal to and coordinate with that of another, and a judge holding a succeeding term of court has no power to review a judgment rendered at a former term on the ground that the judgment is erroneous. No appeal lies from one superior court judge to another. Thus an order striking certain matter from a pleading with permission to the pleader to file further pleadings, if so advised, does not authorize the pleader to file a subsequent amendment repleading verbatim or in substance the matter ordered stricken. Wall v. England, 243 N.C. 36, 89 S.E.2d 785. The record in this case reveals that the only change in the defendant's "further answer and counterclaim" was an allegation that the conditional sales contract and note were on a single sheet of paper, forming one instrument, and therefore any taker or holder would be put on notice of the character of the transaction. This was not sufficient to materially change the amended "further answer and counterclaim" from the pleadings ordered stricken by Judge Bailey. However, the reason assigned by the trial judge becomes academic since both of the pleadings are essentially the same and this particular finding is not decisive on this appeal.

"A motion to strike a pleading in its entirety * * * is in substance, if not in form, a demurrer to the pleading. * * * `A demurrer to a complaint for failure to state facts sufficient to constitute a cause of action admits the truth of every material fact properly alleged. * * * However, it is to be noted that on demurrer only facts properly pleaded are to be considered, with legal inferences and conclusions of the pleader to be disregarded.' * * * G.S. § 1-151 requires us to construe the allegations of the challenged pleading liberally with a view to substantial justice between the parties." Johnson v. Johnson, 259 N.C. 430, 130 S.E.2d 876.

Construing defendant's "further answer and counterclaim," as we are required to do, we note the defendant alleges in paragraph (BB) "that in January 1963 the defendant agreed to purchase a certain airplane with equipment and accessories thereto from Graubart Aviation, Inc., for a purchase price of $59,520.00 and partially paid said purchase price with a trade-in allowance of another plane of $5,000.00," and in paragraph (DD) alleged "that said Graubart Aviation, Inc., completed and filled in the blank spaces in said conditional sales contract, raising the purchase price to $69,500.00 * * * and said increase in the sale price was done for the sole purpose and with intent to evade the usury laws * * *" and in section (EE) "that in addition to the above overcharge or raise in sale price of said airplane, Graubart Aviation, Inc., assessed in the conditional sales contract and note a finance charge in the amount of $19,563.00 * * *." (Emphasis ours)

The case of Carolina Industrial Bank v. Merrimon, 260 N.C. 335, 132 S.E.2d 692, is very similar factually to the instant case. This case is recognized as a landmark case in North Carolina on the question here presented, and Moore, J., speaking for the Court, very exhaustively and clearly enunciated the applicable principles of law, some of which we here quote:

"To maintain an action for the usury penalty the claimant must show: (1) That there was a loan, express or implied. (Or a forbearance of money, Miller v. Dunn, 188 N.C. 397, 124 S.E. 746; Churchill v. Turnage, 122 N.C. 426, 30 S.E. 122). (2) That there was an understanding between the parties that the money lent would be returned. (3) That for such loan or forbearance a greater rate of interest than is allowed by law was paid. (4) That there was a corrupt intent to take more than the legal rate for the use of the money. Preyer v. Parker, 257 N.C. 440, 125 S.E.2d 916; Swamp Loan & Trust Co. v. Yokley, 174 N.C. 573, 94 S.E. 102; Doster v. English, 152 N.C. 339, 67 S.E. 754. If in fact the transaction is a bona fide sale and not a loan of money, it is not usurious. Yarborough v. Hughes, 139 N.C. 199, 51 S.E. 904. But if the form of the transaction is a subterfuge to conceal an exaction of more than the legal rate of interest on what is in fact a loan and not a sale, the transaction will be regarded according to its true character and will be held usurious. Ripple v. Mortgage & Acceptance Corp., 193 N.C. 422, 137 S.E. 156. * * *

"* * * A vendor may fix on his property one price for cash and another for credit, and the mere fact that the credit price exceeds the cash price by a greater percentage than is permitted by the usury laws is a matter of concern to the parties and not to the courts, barring evidence of bad faith. * * * The General Assembly has provided that time prices for supplies advanced for cultivation of crops shall not exceed ten per cent over the retail cash prices. G.S. § 44-54. But there is no statute regulating time prices in general retail credit sales payable in instalments. * * * Usury cannot be predicated upon the fact that property is sold on a credit at an advance over what would be charged in case of a cash sale so long as it appears that the price charged is in fact fixed for the purchase of goods on credit with no intention or purpose of defeating the usury laws, even though the difference between the cash price and the credit price, if considered as interest, amounts to more than the legal rate. * * * A bona fide credit sale upon an instalment payment basis does not involve a loan of money or a forbearance of a debt within the meaning and application of the usury laws. * * * `If there is a real and bona fide purchase, not made as the occasion or pretext for a loan, the transaction will not be usurious even though the sale be for an exorbitant price, and a note is taken, at legal rates, for the unpaid purchase money. The reason is that the statute against usury is striking at and forbidding the extraction or receipt of more than a specified legal rate for the hire of money and not for anything else; and a purchaser is not like the needy borrower, a victim of a rapacious lender, since he can refrain from the purchase if he does not choose to pay the price asked by the seller.' General Motors Acceptance Corp. v. Weinrich, 218 Mo.App. 68, 262 S.W. 425 (1924)." (Emphasis ours) See also Hendrix v. Harry's Cadillac Co., 220 N.C. 84, 16 S.E.2d 456.

Defendant relies heavily on the case of Ripple v. Mortgage & Acceptance Corp., 193 N.C. 422, 137 S.E. 156; however, an examination of the facts in that case does not show a sale. The facts reveal that the motor company purchased automobiles from the manufacturer, who shipped them to the motor company with drafts attached. The motor company paid the drafts with its checks. Title to the automobiles never passed to nor vested in the defendant mortgage company, either actually or constructively. The conditional sales contracts describing the motor company as purchaser and the mortgage company as vendor were used for the purpose of concealing the real nature of the transactions. In the instant case there are affirmative allegations of an agreement to purchase, a partial payment, an execution of a conditional sales contract and note, and delivery of the property. This is the usual and complete procedure involved in a bona fide credit sale upon an instalment payment basis. The pleadings do not allege a loan. The pleadings do not show the extraction of more than a specified legal rate for the hire of money.

We hold that the plaintiff's pleadings make out a sale and instalment credit transaction, and not a loan. Thus, there can be no cause of action for usury.

The order of the court below striking defendant's "further answer and counterclaim" is

Affirmed.