CARLISLE, J.
Where, in a joint action for money had and received and for usury, the plaintiff seeks to recover of the defendant $398.24 as money had and received, and $6,437.13 as interest paid by the plaintiff to the defendant on a series of allegedly usurious transactions between them; and where, on the trial of the case, the evidence is in conflict on every material issue, authorizing the jury to find for the plaintiff for either or both of such sums, or against the plaintiff as to either or both of such sums; and where the trial court instructs the jury to consider the two issues separately and return verdicts as to each, but the jury returns one verdict in favor of the plaintiff for $204.24, which was not authorized by the evidence on either issue presented — a new trial must be granted. If the jury intended by its verdict to find that the transactions were usurious, it could not have found from the evidence in the case that the amount of interest paid by the plaintiff was only $204.24. If the jury intended to find that the transactions were not usurious, then, under the court's instructions, it should have found nothing for the plaintiff on the issue of usury. If the jury intended to find for the plaintiff on the issue of money had and received, it could not under the evidence have found the sum of $204.24. If the jury intended to find in favor of the defendant on that issue, it should have found no sum against the defendant on that issue. If the jury intended to find for the plaintiff on one of the issues and against him on the other, it could not under the evidence have found $204.24. The verdict was not authorized by the evidence and leaves both the issues presented by the jury's determination unresolved. The trial court, consequently, erred in denying the plaintiff's motion for a new trial.
CARLISLE, J.
L. H. King brought an action against Citizens Bank of DeKalb, to recover an alleged amount of usurious interest. In his petition as finally amended he alleges substantially the following material facts: (2) The defendant is indebted to the plaintiff in the sum of $6,883.94 by reason of the following facts. (3) The plaintiff is engaged in the used-car business in Fulton County and sells cars for cash and on credit. When a car is purchased on credit, the plaintiff takes from the purchaser a title-retention contract for the remainder of the time price, showing the full amount due, divided into monthly payments. His practice is then to sell his contracts outright to a finance company or borrow money thereon from a bank. (4) On or about February 10, 1951, J. R. Murphy, a relative by marriage of M. O. Sams, vice-president of the defendant bank, came to see him and advised him that the defendant bank would lend the plaintiff money on his contracts at a reasonable rate of interest, provided the plaintiff would deposit $5,000 with the defendant bank as security and assign all contracts to the bank, assume all losses, collect all past-due notes, and in every particular hold the bank harmless. (5) At that time the plaintiff did not have the $5,000 to deposit in the bank, and Murphy offered to lend him that sum provided the plaintiff would pay him $80 per month interest and assign to Murphy title to 16 automobiles then on the plaintiff's used-car lot, valued at more than $10,000. On February 13, 1951, he entered into an agreement with Murphy, a copy of which is attached to the petition together with a copy of a note signed by the plaintiff at the same time; and on the same day the note and contract were assigned by Murphy to the defendant bank, and the bank then and there gave the plaintiff $5,000. (5 1/2) This contract and note were drawn by Murphy at Murphy's office in Atlanta, executed and assigned there, and were then handed to the plaintiff by Murphy with instructions that he take both out to M. O. Sams, executive vice-president of the defendant bank, and that Sams would know what to do. On the same day the plaintiff delivered both the contract and the note to Sams at the bank building in Avondale Estates. At that time the plaintiff told Sams that Murphy had assured him that, if $5,000 was deposited with the bank as collateral, the bank would then lend the plaintiff the "Red Book Value" on his automobile contracts. Sams replied that he was entirely familiar with the transaction and inquired if the plaintiff had any contracts with him at that time, to which the plaintiff replied that he had just left Murphy's office and did not have any contracts with him but would bring some out in a few days. The plaintiff then inquired of Sams what interest the bank would charge on the loans, to which Sams replied that the interest would be only six percent, thereby approving, ratifying, and adopting by his words and deeds all the acts and sayings of Murphy in the premises. (6) The plaintiff, on or about March 11, 1951, began borrowing money from the bank and using, at the insistence of the bank, the bank's special form of contract, a copy of which is attached to the petition. These contracts were assigned by the plaintiff to the bank with recourse and with the cars described therein as further security. From March 11, 1951, until some time in September, 1951, the plaintiff borrowed money on more than 100 automobiles. A complete list of the transactions is attached to the petition, and shows an overcharge of interest by the bank, as will be more particularly set forth hereinafter. (7) At the time his first note was discounted, there was no written agreement and no particular understanding except that the bank was to have six percent interest on the amount of money lent to the plaintiff, together with the cost of insurance and recording fee, for the full time the note was to run, and the balance, up to the face value of the note, was to be set aside in an escrow account as further security to the bank. This matter of detail was to be left entirely up to Mr. Sams, with whom the plaintiff dealt at all times. It was further agreed that the defendant bank would lend the plaintiff, on each contract handled by it, the sum of money stipulated by the Red Book as the loan value of the automobile listed in the contract. The Red Book was the book used by the defendant in determining the value of automobiles when making loans thereon. (8) On August 23, 1952, the plaintiff redeemed all the notes outstanding in the defendant bank by paying the bank off in full, and now owes the bank nothing whatsoever. After he had paid the bank off in full, and had all the figures before him, the plaintiff found that the bank had charged an excessive amount of interest in the sum of $3,101.19, when calculated at 8 percent per annum on the loan made and the time the notes ran, as is shown by the bill of particulars attached to the petition, and the excessive charges were and are in strict violation of the usury laws of Georgia. (9) The defendant bank calculated on, and was paid 6 percent interest, on the face [value?] of each note instead of the amount of money it lent, for the full time the note was to run, payable monthly, and thereby charged interest on the interest it retained and on the reserve supposedly placed in escrow, which never existed until paid in by the plaintiff or the maker of the note, a sum that was never out of the bank's possession, as is shown by the attached bill of particulars showing a usury charge of $2,293.56, with the interest calculated at 8 percent per annum for the actual time the note ran, the interest being figured on the face [value?] of each note, and the bill of particulars being marked Exhibit E. (10) The next-to-the-last column on the detailed statement marked Exhibit C shows the date of the contracts, and that plaintiff borrowed money thereon on approximately the same date. The transaction was a "running account," and each contract and note interlocked with the other, and the reserve on each and all was held by the bank in one common fund as the plaintiff's money until all of the notes and contracts were paid in full. The bank secretly charged and set up on its books a discount of 12 percent, since the note and contracts were payable monthly, not only on the sum of money loaned the plaintiff, but also on the reserve held back by the bank as collateral. Although some part of the usurious interest sued for was charged to the plaintiff by the bank on its books more than one year before the filing of this suit, none was in fact paid by the plaintiff until August 23, 1952, at which time the plaintiff had a final accounting and paid the bank off in full, and on that date the plaintiff did pay the defendant bank the usurious interest herein complained of. (11) During the entire transaction, the plaintiff assumed and paid all losses; when a contract was delinquent, he paid to the defendant bank the entire balance due and paid the expenses of repossessing the automobile involved; he collected each month many of the payments due on the contracts and remitted the entire amount of these collections each week to the bank, and the bank was never at any time put to any expense in collecting any of the contracts, and never lost any sum whatsoever. (12) The defendant bank's form of contract used in the transactions, and clothed with the appearance of being an absolute sale of the note to the bank, was merely a ruse, scheme, and device to cover up and seek to avoid the usury charged the plaintiff, and for the purpose of keeping it from appearing that the transaction was a loan of money for an unlawful and usurious consideration. Further, the loan of $5,000 made by Murphy to the plaintiff through the defendant bank was likewise a ruse, scheme, and device to avoid the usury laws, in that the defendant bank never lent Murphy any sum whatsoever, but did lend the loan to the plaintiff through Murphy and charged the plaintiff interest on the $5,000 held by them as security, by having the plaintiff pay Murphy $80 each month as interest, and Murphy in turn paid out of the $80 each month $25 as interest. (13, numbered 14) The defendant bank held back and set aside in a reserve account, as the plaintiff's money, a certain sum out of each loan made to the plaintiff, as protection against loss, and on August 23, 1952, when a final accounting was had, there was or should have been in this account $3,567. As the bank had no losses whatsoever, this sum of money rightfully and by agreement belonged to the plaintiff, and the bank has paid him only $3,120.19 of it, leaving a balance due the plaintiff of $446.81, and this sum the bank has failed and refused to pay. (14, numbered 15) Because of the excessive interest charged, in violation of the usury laws of the State, the plaintiff is entitled to a forfeiture on the part of the bank and is entitled to a refund of all the interest charged on every transaction listed on the attached statement, in the sum of $6,437.13, making a total due the plaintiff by the bank of $6,883.94.
The trial court overruled the general and special demurrers to the petition as finally amended.
On the trial, the jury returned a verdict for the plaintiff in the sum of $204.24. The plaintiff's motion for a new trial, based on the usual general grounds and 11 special grounds, was denied, and he has brought the present writ of error to this court to have that judgment reviewed.