Courtney v. Tufeld

KING, J.,

pro

tem.

This is an appeal from a judgment in a ease brought under the Usury Law. (Act 3757, Gen. Laws.)

The complaint alleges that Ben J. Tufeld agreed to loan plaintiffs $1474 on October' 30, 1925, and on said date plaintiffs executed to him their note for $1474 with interest at eight per cent per annum, principal payable in installments as follows: $184.25 on November 30, 1925, and a like amount on the thirtieth day of each month thereafter until paid, “interest paid in advance”. Plaintiffs also gave a chattel mortgage to secure payment of the note. The mortgage was immediately assigned to defendant Fidelity Reserve Corporation. It is then alleged that defendant Tufeld upon receiving the note and mortgage presented to plaintiffs a check for $1474 and asked plaintiffs to indorse the same “In order that he might cash the said check and take out the interest charges which he demanded in advance.” It is then alleged that plaintiffs indorsed the check and gave it to defendant Tufeld, who then handed plaintiffs $1,000 in cash, and this sum was all that plaintiffs received on the loan. The complaint further alleges that plaintiffs paid to defendants the sum of $184.25 on November 30, 1925; $184.25 on December 30, 1925, and the sum of $100 on February 9, 1926, a total of $468.50, and that from and after February 9, 1926, defendants have de

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manded and are continuing to demand the sum of $1,005.50, with interest “at 8 per cent per annum thereon from February 24, 1926”. It then alleges that defendant Fidelity Reserve Corporation “at various times and now purports to be the owner and holder thereof”, and alleges that said last-named defendant at the time of the assignment to it of the note and mortgage knew, and at all times since has known, that the note and mortgage were executed in the manner, under the conditions and for the sums thereinbefore stated; and alleges that at all times defendant Tufeld was and is the true and only holder and owner of the note and mortgage, “and that the defendant Fidelity Reserve Corporation has at all times acted merely as a ‘dummy’ holder for purposes of making collections as agent only for defendant Ben J. Tufeld, and has no right, title or interest in said note and mortgage”. It further alleges that one year has not elapsed since the various payments on the note,' and asks judgment: 1. That the contract, note, mortgage and agreement be declared usurious, illegal, null and void; and defendants be ordered to cancel the note and mortgage, and be restrained from disposing of or foreclosing the same; that the corporation defendant be declared to be the collection agent only of the other defendant; 2. For judgment against defendant Tufeld for treble the sum of $474 taken and charged as interest on October 30, 1925; 3. For judgment for treble the sum of $468.50 paid by plaintiffs since the execution of the note; and, 4. And for treble the whole sum of $1,474.