English Lumber Co. v. Wachovia Bank & Trust Co.

Allen, J.

The findings of fact by the court are conclusive upon us as there is no exception that there is no evidence to support them (Eggers v. Stanbury, 177 N. C., 85), and they make out a case of usury against the defendant.

It is found as a fact that the charge of commissions of 1 per cent at one time, and two-thirds of 1 per cent at another “was an attempted device by which the bank would receive a greater than 6 per cent income from its loans as the conditions for making such loans,” which comes directly within the authority of Arrington v. Goodrich, 95 N. C., 467, which bolds that a commission charged for the purpose of securing more than 6 per cent interest was usurious, and the agreement requiring the plaintiff to keep on deposit a part of the money advanced, or to pay interest on the deficiency, in addition to a charge of 6 per cent interest, is expressly condemned in Bank v. Wysong and Miles Co., 177 N. C., 388, where the principle is fully discussed with ample citation of authority in support of the opinion.

Tbe remaining question is as to the correctness of the ruling on the statute of limitations, and this also is practically foreclosed against the defendant by the finding that there were “almost daily transactions in the nature of loans or credits allowed by the bank, taken up by substituted notes, substituted demand notes on customers’ paper as collateral, and on discounted customers’ paper, all covered by the agreement as to the line of credit, which line of credit agreed upon from time to time was kept exhausted by the plaintiff, transactions being of practically daily frequency, each party keeping the whole of the accounts, the mutual items being so interlocked as to make them practically inseparable. So that it was, and was assumed to be, an open mutual running account from 1 March, 1909, to the close of the transactions, the final settlement and payments being on 4 November, 1914.”

This brings the accounts between the plaintiff and defendant within the definition of a mutual running account as contained in Hollingsworth v. Allen, 176 N. C., 630, and other cases, and the statute of limitations does not begin to run on such accounts except from the last item in the account. Green v. Caldcleugh, 18 N. C., 323; Stokes v. Taylor, 104 N. C., 399; Stancell v. Burgwyn, 124 N. C., 71.

The principle is applicable to statutes of limitations generally, and, as there is no exception of an action to recover the penalty and as the right to bring such action is controlled by our statute of limitations (Rev., 396, subsec. 2), which provides that “an action to recover the penalty for usury” shall be brought within two years, it must be held that it applies to such actions, and it has been so held in other jurisdictions.

In Webb on Usury, sec. 209, the course of dealing between the plaintiff and defendant is described with much accuracy, and the conclusion reached that the lapse of time is not a bar. The author says: “In all cases regard must be bad for the statute of limitations, which, as will be seen, upon subsequent pages, may determine all the rights of the parties to the contract, including the debtor’s right to apply bis payments. But neither lapse of time nor the statute of limitations will affect a ease where the transaction was a continued one. ‘New dealings, new advances, new securities for money, mortgages upon the estate of the complainant, and some of the claims outstanding and unsettled, at the time of filing the bill, when taken together make out a case which neither time nor the statute of limitations can affect.”

Again, in Slover v. Bank, 115 Tenn., 347: “The bill was filed to collect usury upon a series of transactions on the 20th of March, 1905. It charges tbat the last usurious interest was paid on the 1st of March, 1901, and that there was a final settlement between the parties on the 4th of March, 1902, of all the transactions between them involving the usury.

“There was a demurrer filed, relying upon the statute of two years and the statute of six years; and it is insisted in this court that the demurrer should have been sustained on the ground that the action was barred by the statute of two years.

“There being a series of usurious transactions, the statute of limitations would not begin to run until these transactions were closed; and a settlement was made between the parties on the 4th of March, 1902.”

In Pickett v. Bank, 32 Arkansas, 347 (at page 355), it appeared that the firm of Wormley, Joy & Company, of which Pickett was a member, bad opfened a bank account witb the Merchants National Bank of Memphis, with whom they bad a running account for moneys loaned and checks paid, and credits for deposits and payments. The court held that this account, which commenced in 1866 and continued to 1868, constituted but one transaction. In the opinion in this case it is said: “So held under like circumstances by the Supreme Court of Tennessee in the case of Weatherhead v. Boyers, 7 Yerger, 545, and Poyers v. Boddie, 3 Hum., 666. In the first mentioned case Mr. Justice Pech said: ‘The transaction was a continued one, new dealings, new advances, new securities for money, . . . when taken, make a case where neither time nor the statute of limitation can have effect.’ The defense was usury, the precise question as to the time when the statute bar commenced, the transaction of advancements, payments, and settlements, extended for several years, and was held to be one transaction.”

We therefore conclude that tbe cause of action is not barred.

Affirmed.