North v. Cecil B. DeMille Productions, Inc.

THOMPSON, J.

This action was commenced by the plaintiffs to recover from defendant usurious interest alleged to have been paid to it by the corporate plaintiff, and to collect treble, damages therefor. Richard L. North and J. Grover Kelley, prior to the commencement of this action, had been appointed receivers for their coplaintiff, which was insolvent, in an action pending in the United States District Court and had been authorized to maintain and prosecute this action. Both the receivers and the company are named as plaintiffs. The' complaint is in four counts and alleges that between January 25, 1930, and November 6, 1930, the plaintiff corporation negotiated four different ninety-day loans from the defendant and transferred and conveyed to the defendant certain interests in leasehold estates for the use of -the sums so borrowed for the period-of ninety days. Each borrowing is made the subject of a different count, but in each ease it is alleged “upon information and belief that the said property so conveyed to

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said” defendant was, on the day the.loan was made, of the value of $15,000, although the conveyance in each instance is alleged to have been of an interest in a different leasehold. There is no direct allegation to the effect that the parties intended to consummate an usurious transaction or that the defendant knew the value of the leasehold or royalty interests conveyed to it.

The defendant demurred to the complaint upon two grounds, as follows: (1) misjoinder of parties plaintiff for the reason that the receivers of the plaintiff corporation were joined with it in the action, and (2) that the complaint did not, nor did any of the counts, state a cause of action.

The demurrer was sustained with leave to amend. However, the receivers elected to stand upon their pleading and judgment was rendered dismissing them from the action. The appeal is prosecuted from this judgment. .

In support of the judgment the respondent asserts: (1) that there was a misjoinder of parties plaintiff, (2) that the allegations of value, being upon information and belief, are insufficient, and .(3) that the complaint was defective for failing to directly allege an intent to enter into an usurious contract. Appellants, of course, insist that none of the contentions advanced by respondent are sound.