This is an action of assumpsit on the common counts and a special one to recover back money paid by plaintiff to defendant on a void and usurious contract, void as in violation of a local usury law of 1901 (Laws 1900-1901, p. 2685) for Jefferson, Etowah, and Walker counties. The plaintiff demurred to the special count A. The demurrer being overruled, a special plea thereto was filed, to which a replication (treated as special one) was field, to which a demurrer was interposed and overruled. The trial was had on these issue, and the court gave the affirmative charge for the plaintiff, which resulted in verdict and judgment for plaintiff, and defendant appeals, assigning and insisting upon the adverse rulings to it, above pointed out.
"By the weight of authority, both in this country and in England, an action at common law, in the nature of an action for money had and received, will lie for the recovery back of usurious payments in excess of principal and legal interest. And the omission from a later statute of an express provision of an earlier one for the recovery back of excessive payments does not negative the common-law right. A payment of usurious interest is regarded as made under the constraint of a formal, though illegal, contract, obtained by taking advantage of the necessities of the borrower, and is therefore excepted from the ordinary rule that one voluntarily paying money on an illegal scheme cannot maintain an action to recover such payment." 27 Rawle C. L. pp. 269, 270. This common-rule, however, was at an early day changed by the general statutes of this state so as to render the contract voidable *Page 170 only, and only unenforceable as to amount of usury, which prevented the action to recover back money paid under such contracts.
The law in this state on the subject, under the general statute, has been, in substance, thus expressed by the Supreme Court of the state:
"An action to recover back money paid under a usurious contract will not lie in the absence of an express promise to pay." Gross v. Coffey, 111 Ala. 468, 20 So. 428.
If, at common law, the borrower who had paid usurious interest could recover it back in assumpsit, the effect of the statute of 1919 was to change the rule. Carlisle Groggs v. Gray, 10 Ala. 302; 4 Mayfield Dig. 1055. We are of the opinion that the effect, if not the purpose, of the local statute in question (Acts 1901, p. 2685) was to change the law as to the counties affected thereby, and thus restore the rule at common law as above stated. The act in question declares contracts, such as are shown in this case, to be void, illegal, and not enforceable, and makes the usurer guilty of a crime.
If there ever was justice in the common-law rule — and we think there was — and there ever was a case to which it could and should be applied this appears to us to be that case; and there was no error in any of the rulings of the court then complained of, if the statute in question is valid and constitutional.
We can and will undertake to construe the statute only as it applies to this case, and as to questions which this defendant can raise and has raised on this trial. We know of no constitutional provision — state or federal — which protects or guarantees to the defendant the right or privilege to do what the undisputed evidence shows it to have done in this case. Constitutional provisions which would guarantee to the defendant to do what this record shows the defendant to have done would be little better than legalized robbery. The facts of the case are fairly stated by appellee in his "Statement of the Case," and are as follows:
Ed Ford, a negro, sued in the municipal court of Jefferson county to recover the sum of $40, paid as interest on a loan made to him by appellants which originally was for the sum of $5, but later on, as hereinafter set forth, was increased to $10, and then to $15. The undisputed testimony admitted to by answers of the appellants to appellee's interrogatories, was to the effect that for 15 consecutive months, beginning in November, 1917, appellee paid to appellants the sum of $1.80 per month for the use of this $5, then, increasing the loan by borrowing $5 more on January 11, 1919, appellee paid $3 per month for 5 consecutive months thereafter for the use of this $10, and finally, on the 9th day of June, 1919, appellee added $5 more to the loan, making a total principal of $15 owing by appellee to appellant, upon which he agreed to pay $4 per month for the use thereof, and did so pay said $4 per month for the months of June, July, August, and September, whereupon, appellee's resources becoming exhausted, the evidence showed that he turned in his time and took his discharge from his employer because of threats of garnishment for $19 claimed by appellants, of which $15 was claimed as principal and $4 as interest for the month of October, 1919. The evidence further shows that immediately after he accepted his discharge, and agent or agents of appellants informed him that if he did not pay the said $19 at once they would seize and sell his household furniture therefor. It was then that he sought an attorney, and these proceedings began by suit to recover money paid as usury.
Counsel for appellant argue at much length that if all the provisions of the statute should be enforced, it would violate some of the fundamental principles of constitutional government, and deprive and citizen of some of his inalienable rights. It is sufficient to say that, if there are such provisions in the statute, as to which we intimate no opinion, the facts of this case do not bring the case within such provisions of the statute. We find no provision of the statute, which applies to the facts in this case, which violates any provision of the state or federal Constitutions.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.