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02/06/42 CARL H. DEGE v. PRODUCE EXCHANGE BANK ST.

February 6, 1942.

CARL H. DEGE
v.
PRODUCE EXCHANGE BANK OF ST. PAUL.



Action in the district court for Ramsey county by the administrator of the estate of Albert C. Dege to recover alleged usurious interest paid to defendant on certain loans. The case was tried before Kenneth G. Brill, Judge, and a jury and a verdict of $750 returned in favor of plaintiff. From an order denying its alternative motion for judgment or a new trial, defendant appealed. Reversed and new trial granted.

The opinion of the court was delivered by: Loring

Bank and banking -- evidence as to usurious transaction with bank.

1. Inferences reasonably to be drawn from circumstantial evidence justified a finding that transaction alleged to be usurious was one between plaintiff's decedent and defendant bank.

Usury -- degree of proof to establish usury.

2. Usury may be proved by a fair preponderance of the evidence.

Trial -- perverse verdict.

3. Verdict held perverse as a compromise and not in response to evidence.

LORING, JUSTICE.

Action by the administrator of the estate of Albert C. Dege, deceased, to recover money alleged to have been paid to defendant as usurious interest on certain loans. The jury returned a verdict for plaintiff for $750, and defendant appeals from an order denying its alternative motion for judgment or a new trial.

Defendant claims that (1) the evidence is insufficient to sustain any verdict for plaintiff, and (2) the verdict was a "split" one and thus contrary to law.

Defendant was a small commercial bank located in St. Paul. Santo Speranza was its president, principal loaning officer, manager, and a director. During the period between May 4, 1938, and February 28, 1939, either defendant or Speranza personally made 18 separate loans to deceased for which he gave demand promissory notes payable to defendant. Plaintiff claims that defendant made the loans and that deceased paid usurious interest in advance to defendant. Defendant claims that Speranza personally lent the money and that it received neither principal nor interest.

Plaintiff introduced in evidence books and accounts of the deceased showing, among other things, entries of certain checks. According to the entries, some of the checks were for payments on the principal of the loans, and others were for interest on the loans (entries marked "interest" and "expense"). These books also showed that amounts representing the principal checks were entered in defendant's account and that amounts representing the interest checks were entered in its expense account. The corresponding cancelled checks were also introduced. The checks for both interest and principal, payable to defendant, were cancelled without endorsement. Dates on most of the interest checks corresponded to the date of the note representing the loan on which they prepaid interest. For example, plaintiff's exhibit A was a demand note of deceased's payable to defendant, dated May 4, 1938. Plaintiff's exhibit B was an interest check of deceased's payable to defendant, dated May 4, 1938. Furthermore, nearly all the interest checks for the corresponding loans were at the same rate, viz., $30 per $1,000.

Defendant introduced bank records and reports of examination which showed no loans to deceased. Speranza, testifying that he personally made the loans in question, denied that he charged or collected usurious interest and asserted that in some instances he charged no interest at all. Michelson, an employe and director of the bank, also testified that the bank did not make the loans or receive the interest.

1. While the testimony of Speranza and Michelson is not contradicted by direct testimony, the inference which the jury might reasonably draw from the checks, notes, and accounts justifies a finding that the transaction was in fact with the bank. The rule of O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430, does not apply where circumstances and other facts tend to contradict direct testimony. As well said by this court, speaking ...


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