Opinion
January 8, 1941 —
April 15, 1941.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit Judge. Affirmed.
For the appellant there was a brief by Jerome F. Treis, attorney, and John S. Barry of counsel, both of Milwaukee, and oral argument by Mr. Barry.
For the respondent there was a brief by Lester H. Gunsburg, attorney, and Poss, Toelle Schuler and Joseph P. Brazy of counsel, all of Milwaukee, and oral argument by Mr. Brazy.
Replevin commenced in the civil court of Milwaukee county, March 13, 1940, by Interstate Credit Corporation, plaintiff, against Donald E. Ellsworth, defendant, to recover an airplane. The judgment there entered was reversed on appeal to the circuit court where judgment was granted for plaintiff. This is an appeal by the defendant from the judgment of the circuit court.
The Lange Aviation Corporation sold an airplane to Ellsworth, and in part payment took a note for $3,864.25, payable in eighteen monthly instalments and secured by a chattel mortgage, both of which it later assigned to the Interstate Credit Corporation. After seven instalments were paid, Ellsworth defaulted. In the action then begun, defendant, after denying indebtedness and the ownership of any interest in the property by the plaintiff, interposed as a further defense the allegation "that the plaintiff makes a pretended claim to said property by virtue of a certain chattel mortgage in which the defendant appears as the mortgagor and the Lange Aviation Corporation was named as mortgagee, . . . and which said mortgage purports to have been given to secure the payment of a certain chattel-mortgage note from the defendant to said Lange Aviation Corporation in the principal sum of $3,864.25. That in truth and in fact said note was given to secure a loan made to the defendant by the plaintiff herein for the sum of $2,961.65, and the difference . . . to wit the sum of $902.60, represents a charge for the use of said money exacted by the plaintiff of the defendant."
The finding in the civil court sustained the defendant's contention. In reversing the judgment the circuit court found that plaintiff is entitled to the possession of the property, and entered judgment according to the statute. The evidence is that the defendant desired to negotiate on the basis of credit for the purchase of the machine. The price at which the airplane was offered to Ellsworth before the question of credit arose was $6,322.50.
The following opinion was filed February 4, 1941:
Even if we were to assume that the negotiations were between Ellsworth and the Interstate Credit Corporation and that they warrant the claim that this was a loan by the Interstate Credit Corporation to. Ellsworth, a question which we do not here decide, and that the interest charged was greater than the legal rate, the defense of usury could not be taken advantage of by appellant in the absence of a tender of the principal as required in such cases by sec. 115.08, Stats., which provides:
"Whenever any person shall apply to any court in this state to be relieved in case of a usurious contract or security, or when any person shall set up the plea of usury in any action instituted against him, such person to be entitled to such relief or the benefit of such plea shall prove a tender of the principal sum of money or thing loaned to the party entitled to receive the same."
The transactions between the interested parties are not affected by the terms of either sec. 115.09(9), Stats., or ch. 214, sec. 214.01 et seq., Stats. Those sections are in the nature of small-loans statutes and treat with negotiations leading up to contracts therein described. They regulate loans of lesser amounts than the amount here involved. We do not find it necessary at this time to interpret those sections. Loans outside the terms of those statutes, as this one, if it is a loan, certainly is, unquestionably are subject to the rule requiring the debtor to make a tender of the principal sum of money or thing loaned. No such tender was made in this case. Under the evidence the respondent was entitled to take the airplane.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on April 15, 1941.