Guild v. First National Bank

Citations

• 4 S.D. 566
• 57 N.W. 499
• 1894 S.D. LEXIS 16

Syllabus

<p>1. A territorial law in force in certain counties of the late Territory of Dakota, which provided that in those counties “it shall be lawful to take, receive, retain and contract for any rate [of interest] agreed on between the parties,” allowed and fixed the rate of interest by law in such counties or district, within the meaning of Section 5197, Rev. St. U. S., which provides that “any association may take, receive, reserve and charge on any loan * * * interest allowed by the laws of the state, territory or district where the bank is located.”</p> <p>2. From February, 1881, when said territorial law was enacted, until July 1, 1887, when the same was repealed, it was lawful for territorial and private banks and individuals to take, receive, retain and contract for any rate of interest agreed on between the parties, within the counties named in the act, when there was an express contract in writing fixing the rate. Therefore, it was lawful for a national bank, in those counties, to contract in writing for any rate of interest agreed on between the parties.</p> <p>3. Under the general law relating to interest in force in the territory after July 1, 1887, territorial and private banks and individuals were allowed to take, receive, retain and contract for interest at the rate of 12 per cent per annum, and national banks were therefore allowed to take, receive, and retain interest at the same rate; and it was not unlawful for such national banks, under the national banking act, to take, receive and retain interest paid at the rate of 12 per centum per annum, in the absence of an express contract in writing' therefor.</p> <p>4. A complaint that alleges that the defendant “knowingly and usuriously charged, took, received and reserved from plaintiff, and that plaintiff paid to defendant, for interest, * * * being at the rate of 24 per centum per annum,” giving time, amount, etc., states facts sufficient to constitute a good cause of action for the recovery of such alleg