Atkinson v. Wilcken

GRIFFIN, J.

Plaintiff and appellant commenced this action for usury. The pretrial conference resulted in a stipulation that plaintiff, on February 18, 1952, entered into certain negotiations with defendant and respondent culminating in the delivery by defendant to plaintiff of the sum of $4,000, and the execution by plaintiff of a promissory note in the sum of $6,000, payable to defendant at $80 per month, including 6 per cent interest. It was secured by a third trust deed on plaintiff's five-unit court property. Eleven monthly payments of $80 each were made on the note. On February 6, 1953, plaintiff paid defendant $4,600. It is plaintiff’s contention that this constituted a usurious transaction and accordingly sought treble interest as provided by statute. It is also argued that evidence of any oral agreement pertaining to the transaction was not admissible, relying principally upon

Martin

v.

Ajax Const. Co.,

124 Cal.App.2d 425 [269 P.2d 132];

Thomas

v.

Hunt Mfg. Corp.,

42 Cal.2d 734 [269 P.2d 12];

Brown

v.

Cardoza,

67 Cal.App.2d 187 [153 P.2d 767] ; and

Moore

v.

Dealy,

117 Cal.App.2d 89 [254 P.2d 888], It

[247]

is defendant’s claim that the relationship of the parties was that of joint venturers and accordingly the transaction was not usurious.

Plaintiff, who had had some experience as a real estate salesman, owned dwelling units which were subject to a first and second trust deed totaling $9,000. The second trust deed had a "balloon” payment of $4,000 past due and was in the process of foreclosure. Defendant, who had had some real estate experience, was going with plaintiff’s daughter. Plaintiff told defendant of his financial distress and wanted defendant to buy the property. He said he was not interested but would help plaintiff save the property and together they would endeavor to sell it.