Young v. Hillman

YORK, J. The complaint herein, which was held by the trial court to be insufficient to state a cause of action, alleged that on June 28, 1931, plaintiff, as owner of a twin-screw cruiser named "Rainbow”, borrowed and received from defendant Lloyd K. Hillman the sum of $10,000; that "pursuant to said conspiracy ’ ’ of the two defendants, plaintiff gave his promissory note in the sum of $13,857.70, with principal payable in instalments, together with interest at one per cent per, month on the unpaid balances, and also gave to defendant Hillman Auto Loan Ltd., a chattel mortgage on the cruiser which was then valued at $25,000; that plaintiff being unable to pay the first instalment which was due August 28, 1931, under date of September 15, 1931, gave a bill of sale of the cruiser to the defendant Lloyd K. Hill-man, and that, as a result thereof, the defendant unlawfully, fraudulently, maliciously and oppressively, "pursuant to the said conspiracy”, took and received from the plaintiff for said loan of $10,000 grossly exorbitant usurious interest and profit of the value of $15,000. The prayer is for judgment of $15,000 as actual usurious damages and $50,000 as exemplary damages. Plaintiff seeks by this action to recover the difference between the alleged principal loaned and the alleged value of the yacht as usurious interest, on the theory that the transfer by a bill of sale of the cruiser, upon which a chattel mortgage had been given as security for the original loan, constituted payment of usurious interest.

[741]The cause came on for trial on September 22, 1933, a jury was duly impaneled and counsel for plaintiff made his opening statement, whereupon defendants objected to introduction of any evidence in support of plaintiff's alleged cause of action, on the ground that the complaint failed to state facts sufficient to constitute a cause of action, which objection was sustained by the trial court. Thereafter, on October 5, 1933, plaintiff made a motion to set aside the minute order made by the court on September 22, 1933, directing that judgment be entered in favor of defendants, and also that plaintiff be given permission to file an amended complaint; whereupon, on October 17, 1933, the court denied plaintiff’s motion to set aside the minute order that judgment of dismissal be entered, and plaintiff's motion for leave to file an amended complaint was denied. On October 25, 1933, the court made and entered its judgment dismissing the action on the ground that the complaint did not state facts sufficient to constitute a cause of action, and ordered that the defendants have and recover their costs from the plaintiff.