1 Reported in 230 N.W. 257, 258. Action to cancel upon the ground of usury certain notes and the deed of trust securing them. The trial without a jury resulted in a decision for defendant, judgment being ordered in its favor.
1. There was no motion for a new trial, and the attempted appeal is from the order for judgment, a nonappealable order. Hence the appeal must be and is dismissed. Orth v. Walters,155 Minn. 131, 192 N.W. 936; Wm. Weisman Realty Co. v. Cohen,160 Minn. 440, 200 N.W. 636; Brochin v. Lifson, 172 Minn. 51,215 N.W. 180; 1 Dunnell, Minn. Dig. (2 ed.) § 295, and cases cited under note 72. The dismissal is without prejudice to the right of plaintiffs to have judgment entered and then to appeal from the judgment. If that is done the case will be considered upon the record and briefs already here, subject however to considerations which remain to be mentioned.2
2. There is what purports to be one finding of fact, that "the evidence fails to establish the cause of action set out in the complaint herein." That is no finding of fact but a mere legal conclusion from the facts. The statute, G. S. 1923 (2 Mason, 1927) § 9311, requires, in cases tried without a jury, findings of fact and conclusions of law separately stated. We have had occasion before to note failures to comply with the statute. Pioneer L. L. Co. v. Bernard, 156 Minn. 422,195 N.W. 140; Goodhue County Nat. Bank v. Fleming, 168 Minn. 50,209 N.W. 533; Morrissey v. Morrissey, 172 Minn. 72,214 N.W. 783; Hawkins v. Foasberg, 175 Minn. 252, 220 N.W. 951. We need not repeat what was said in those cases. If counsel expect us to review the case on appeal from the judgment, they should procure findings of fact and conclusions of law as required by the statute. *Page 383
In view of the possible appeal from the judgment, it seems advisable to refer to a point presented by the record but not discussed in the briefs. The notes and mortgage are in evidence together with an application for the loan. In the latter plaintiffs as borrowers agreed to pay certain enumerated expenses, including the cost of title insurance, a guaranty of the notes by a surety company, and the trustee's fees. In the brief for appellants is this:
"Assuming that these items were proved by the defendant and were deductible from the amount received by the lender, the loan would return to the lender $193.17 less than eight per cent. It is to be observed, however, in the record that the proof of these items was not made."
If the return on the loan was less than eight per cent per annum there was no usury. G. S. 1923 (2 Mason, 1927) § 7036.
Our statute against usury is highly penal. The presumption is that the contracts in question were lawful, that they did not offend the law. The record shows that plaintiffs, as borrowers, agreed to assume the expenses in question and that such expenses were incurred. The question then arises, did plaintiffs meet the burden imposed upon them without evidence that even after paying all the expenses they agreed to pay the return to the lender was usurious? We express no opinion one way or the other, but the question seems to arise on the record. So it might be well for counsel, if the case returns here after judgment, to submit supplemental briefs on that one problem.
Appeal dismissed.
2 See following opinion. *Page 384
March 28, 1930. No. 27,986.Usury — burden of proof.
The burden of proof is upon the party claiming usury to negative every reasonably supposable fact which if true would render the transaction lawful.
After dismissal of the first appeal, pursuant to the foregoing opinion, judgment was entered for defendant, Baldwin, J. from which plaintiffs appealed. Affirmed.
Tryon Everett and Phillip J. Riordan, for appellants.
Stinchfield, Mackall, Crounse McNally, for respondent.