Esposti v. Rivers Brothers, Inc.

RICHARDS, J.

This appeal is from a judgment of the superior court of the state of - California, in and for the city and county of San Francisco, in favor of the defendants and against the plaintiff, rendered and entered after the court had sustained a general demurrer to the plaintiff’s amended complaint without leave to amend. The action was commenced to recover treble the amount of certain interest paid upon a promissory note, secured by a trust deed, under the provisions of section 3 of the act relating to usury (Stats. 1919, p. lxxxiii). The facts upon which the plaintiff relied for his recovery as set forth in his complaint, and repeated in his amended complaint, may be briefly stated as follows: On March 9, 1926, Joseph Varsi and wife exe

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cuted the note and trust deed to which the plaintiff in his complaint refers and which called for a payment of $20,000 with interest monthly in advance at the rate of one per cent per month. During the month of March, 1927, the makers of the note paid to the payees thereof, who are the defendants herein, the sum of $3,170, of which the sum of $3,000 was to be applied upon the principal, and the sum of $170' as advance interest upon the reduced principal for the month éxtending from March 9, 1927, to April 9, 1927. During the latter period Joseph Varsi and wife conveyed the property described in the trust deed to one Frederick Huelter, subject to the trust deed, for the sum of $17,000. On April 8, 1927, Frederick Huelter paid the defendants $170 as interest on said amount at the rate of one per cent per month from April 9, 1927, to May 9, 1927, and thereafter made four additional monthly payments at said rate upon the note. During the month of August, 1927, Frederick Huelter conveyed the property, subject to the trust deed, to one Harry Schwartz, who, on the same day, conveyed it to the plaintiff. Thereafter the plaintiff paid the interest accruing upon the note at the same rate monthly in advance for five months, the last payment being made on January 9, 1928. The complaint further shows that on March 8, 1928, the plaintiff tendered to the defendants the sum of $11,500, together with the interest amounting to $170 for the month beginning February 9, 1928, and ending on March 9, 1928. At the time of such tender the plaintiff advised the defendants of the assignment to him of whatever right of action existed in said Frederick Huelter for the recovery provided for in section 3 of the Usury Act. The defendants refused to accept these tenders; whereupon the plaintiff deposited the sum thus tendered to the credit of the defendants with the Bank of Italy, which immediately notified the defendants of such deposit. Thereupon the plaintiff commenced this action to recover the sum of $5,100, being treble the amount of the alleged usurious interest paid by the plaintiff and his assignor Huelter, praying that said sum be deducted from the principal due under said indebtedness, and for general relief. The defendants presented a general demurrer to the original complaint, which the trial court sustained, and also presented a general demurrer to the amended complaint, which the trial court also sustained