Hillier v. Muth

ARCHBALD, J.,

pro

tem.

Action by plaintiff to recover of defendants alleged usurious interest payments made by him. From the judgment in favor of defendants plaintiff has appealed.

On or about September 25, 1928, plaintiff made a written application to defendant Central Counties Finance Co., Inc., “for the purpose of obtaining a loan through you from the Mercantile Acceptance Corporation, or the Western States Acceptance Corporation”, with his automobile as security. The amount of the loan applied for was $1,000 for twelve months, and in the application plaintiff agreed to pay said defendant company a commission of seven and one-half per cent for its services in procuring it, “said commission to be deducted” from the loan. Defendant Paul Muth was the manager of defendant Central Counties Finance Company, and was the one with whom plaintiff conducted his negotiations. Plaintiff was informed by Muth that the latter’s company did not make such loans, but that it would procure one for him from the Mercantile Acceptance Corporation, and that such corporation would require plaintiff to place insurance on his car with it. The insurance amounted to $84.10, the brokerage to be paid defendant Central Counties Finance Co., Inc., $66.31, and Muth appraised the* car as good for $800 in cash net to plaintiff. To the aggregate of such net cash, insurance and brokerage was added '$57.59 for interest, making a total of $1,008. A conditional sale agreement was executed by de

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fendant company as “seller” and plaintiff as buyer, covering plaintiff’s automobile, which agreement was dated September 28, 1928, and called for the payment of $84 per month, beginning one month after the date of said contract and continuing for twelve months, a total of $1,008, any unpaid balance to bear interest after maturity of twelve per cent per annum, and all payments of principal and interest to be made “at the office of Mercantile Acceptance Corporation of California, 142 Sansome St., San Francisco”. The contract was then assigned by Central Counties Finance Company to said Mercantile Acceptance Corporation. Evidence was admitted over objection of plaintiff to show that while the $800 net was advanced to plaintiff by defendant company, said defendant was repaid such amount plus the brokerage charge agreed to be paid by plaintiff, by a check of the Mercantile Acceptance Corporation for $866.31, and that all payments received by said defendant from plaintiff were turned over to said Acceptance Corporation.