Clark v. . Bank , 200 N.C. 635 ( 1931 )

This is an action to recover the statutory penalty for usury paid by plaintiff to defendant, to wit, twice the amount of interest paid on loans of money made by defendant to plaintiff.

The action was heard on defendant's demurrer to the complaint, for that the facts stated therein are not sufficient to constitute a cause of action.

From judgment sustaining the demurrer, and allowing plaintiff time within which to amend his complaint, plaintiff appealed to the Supreme Court. In the absence of allegations in the complaint that plaintiff paid to defendant as interest on loans of money made by defendant to plaintiff, sums in excess of six per centum per annum, the demurrer of defendant to the complaint was properly sustained. Allegations that defendant charged and received usury, on notes discounted by plaintiff with defendant, are not sufficient to constitute a cause of action on which plaintiff is entitled to recover the statutory penalty for usury paid by plaintiff to defendant. Nor are allegations that defendant charged plaintiff interest in excess of six per cent on loans of money made by defendant to plaintiff, sufficient, without the further allegation that plaintiff has paid to defendant such interest.

The statutory penalty for charging usury is the forfeiture of all interest on the loan; it is only when the borrower has paid usury to the lender of money, that he can recover in a civil action as the statutory penalty for taking and receiving usury, twice the amount paid. C. S., 2306.McNeill v. Suggs, 199 N.C. 477, 154 S.E. 720; Briggs v. Bank, 197 N.C. 120, 147 S.E. 815; McKinney v. Sutphin, 196 N.C. 318,145 S.E. 621; Pratt v. Mortgage Co., 196 N.C. 294, 145 S.E. 396;Ripple v. Mortgage Co., 193 N.C. 422, 137 S.E. 156; Sloan v. InsuranceCo., 189 N.C. 690, 128 S.E. 2; Miller v. Dunn, 188 N.C. 397,124 S.E. 746; Waters v. Garris, 188 N.C. 305, 124 S.E. 334.

It is significant that in the instant case plaintiff did not amend his complaint as he was allowed to do by the judgment, and thus cure the specific defect therein to which his attention was directed by the demurrer. The judgment is

Affirmed.