APPEAL from a judgment of the Superior Court of the County of Yavapai. Henry C. Kelly, Judge. Judgment reversed.
Mr. T. J. Byrne and Mr. Charles E. McDaniel, for Appellant.
Mr. E. S. Clark and Mr. Neil C. Clark, for Appellee, and Mr. William T. Elsing, Associate Counsel.
[57 Ariz. 180] LOCKWOOD, C.J.
This is an action by W. C. Denny, hereinafter called plaintiff, against Dixon Fagerberg, hereinafter called defendant. It is based upon section 1884, Revised Code of 1928, which reads as follows:
"Usury prohibited; penalty. No person shall directly or indirectly take or receive in money, goods, or things in action, or in any other way, any greater sum or any greater value for the loan or forbearance of any money, goods, or things in action, than ten dollars on one hundred dollars for one year; any person contracting for, reserving or receiving, directly or indirectly, any greater sum or value, shall forfeit all interest."
[57 Ariz. 181] The case was tried to the court sitting without a jury and judgment rendered in favor of plaintiff for the sum of $58,240.21,
with interest, whereupon this appeal was taken.
The facts material to a determination of the appeal as found by the trial court, and stated in a narrative form, are as follows: During all the periods involved defendant was engaged in the brokerage business, which included the loaning of money for hire, while plaintiff was in the livestock business. For a long period of time the relation of borrower and lender existed between them, and on various occasions before the transactions involved in the present case plaintiff had borrowed from and repaid to defendant large sums of money. In 1929 plaintiff applied to defendant for a loan of $50,000. After considerable negotiation back and forth, the loan was made on October 28, 1929, when plaintiff executed in favor of defendant a note, which reads so far as material, as follows:
"October 28, 1929
"Five (5) years after date without grace, for value received, I promise to pay to the order of Dixon Fagerberg at the office of Dixon Fagerberg in Prescott, Yavapai County, Arizona, the sum of Fifty Thousand & 00/100 Dollars, payable in gold coin of the United States of America, the interest thereon in like gold coin, from date until paid, at the rate of ten per cent per annum, with interest payable quarterly, and if not so paid to be added to the principal and bear thereafter the same rate of interest. And should default be made in the payment ...