
    E. E. Griswold and Hattie Griswold, Appellees, v. Andrew Dugane and Rose Adams, Appellants.
    1 Usury: pleadings: sufficiency. Where the petition in an action for the recovery of instruments evidencing an indebtedness from plaintiff to defendant disclosed that the return of the instruments was sought on the ground that the money borrowed in the transaction had been fully paid, with lawful interest, and that under the facts alleged defendant was not entitled to retain the instruments unless some of the payments were made as commissions for procuring the loan, the question of usury was in issue and was properly submitted to the jury.
    2 Same. Any agreement made by a borrower with one acting as the agent of the lender to pay a commission in addition to the maximum rate of interest will render the transaction usurious.
    3 Trial: remarks of court: prejudice. Where the question of the genuineness of a signature was immaterial the remarks of the court in excluding evidence upon that subject are held to have been nonprejudicial.
    4 New trial: motion to strike : harmless ruling. Any error in striking from the record a motion for a new trial is not prejudicial, where the party by appeal may raise every ground urged in support of the motion for a new trial.
    
      Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.
    Tuesday, September 27, 1910.
    Action in replevin to recover the possession of certain instruments purporting to show an indebtedness from plaintiffs to the defendant Rose Adams and certain other instruments purporting to assign to said Rose Adams by way of security the wages to become due to the plaintiff E. E. Griswold from the Chicago, Rock Island & Pacific Railroad Company. Tbe fact alleged as a basis for tbe recovery of tbe possession of tbe instruments was substantially that tbe indebtedness represented and secured thereby bad been extinguished. Tbe defense was that tbe sum of $100 yet remained due, evidenced and secured by said instruments. There was a verdict for the plaintiffs, and tbe defendants appeal.
    
      Affirmed.
    
    
      E. W. Griffiths, for appellants.
    
      G. W. Bingham, for appellees.
   McClain, J.

It is perfectly clear, under tbe evidence, that tbe instruments in question were executed in a transaction between plaintiffs and defendant Dugane relating to tbe borrowing of money in which plaintiffs received at one time $80 and at another time $20, and that within one year plaintiffs bad paid to Dugane tbe sum of $110 which bad been more than tbe money received, with interest thereon at eight percent, tbe largest percent which can lawfully be contracted for in this state, and that, if tbe transaction was in fact or effect a loan of money by Dugane to tbe plaintiffs, then no further sum was due on, or secured by tbe instruments in question, and tbe plaintiffs were entitled to tbe possession thereof. To meet this prima facie case tbe defendants alleged ■ and sought to prove that Dugane in fact was loaning tbe money of bis codefendant, Rose Adams; that he exacted from tbe plaintiffs in addition to tbe legal rate of interest to be paid to her a further sum by way of commission for procuring tbe money for plaintiffs; and that tbe payments made by tbe plaintiffs, were so made and had been applied first to tbe extinguishment of said commission, leaving tbe sum of $100 still due from plaintiffs to Rose Adams. It may be conceded that tbe instruments introduced in evidence tended to show tbe creation of an indebtedness of plaintiffs to Rose Adams to the sum of $150, but, whatever may have been the nature of the instruments, if as a matter of fact the transaction was a loan of money by Dugane to plaintiffs in the total sum of $100, and this amount of money with lawful interest thereon had been repaid to Dugane, then the indebtedness had been extinguished and Rose Adams (who did not claim to be an innocent purchaser for value or to otherwise have acted in the transaction except through Dugane who represented her) had no further right under the instruments. The statute expressly prohibits the receiving directly or indirectly in money or any other thing of value any greater sum or value for the loan of money than the statutory rate of interest. Code, section 8040. Appellants do not controvert this general proposition, but they insist, first, that the question of usury was not raised in the case and that the instruction of the court submitting that question to the jury was therefore erroneous; and, second, that the evidence did not support the verdict.

I. While it is true that the word “usury” is not employed in the pleadings, it is perfectly apparent that the plaintiffs were claiming the return of the instruments on the ground that the money borrowed in the transaction with Dugane with lawful interest thereon had been paid, and that the defendants perfectly understood that, under the facts relied on by the plaintiffs, they were not entitled to retain possession of the instruments unless the fact that some of the payments made to Dugane were by way of commission for the procurement of a loan could be established. The question of usury was therefore raised by the allegations of the pleadings, and was properly submitted to the jury.

II. The only question of fact about which there was any real controversy was whether the money advanced to plaintiffs by Dugane was so advanced by him as lender or was money procured by him as agent for plaintiffs from Nose Adams; for it is perfectly clear that, if Dugane acted as agent for Nose Adams, any commission agreed upon in addition to the legal rate of interest of eight percent would render the transaction usurious. McNeely v. Ford, 103 Iowa, 508; Weaver v. Burnett, 110 Iowa, 567. Now the evidence quite "clearly shows that plaintiffs in dealing with Dugane did not understand that he was acting as their agent to procure a loan from Mrs. Adams. This question was properly submitted to the jury, and the verdict has ample support in the evidence.

III. Complaint as to a remark made by the court in excluding certain evidence is without merit in view of the form in which the case was submitted to the jury. The evidence excluded related to the genuineness the signatures of Mrs. Griswold to certain instruments introduced in evidence, and, as the genuineness of such signatures was in no way material, what was said by the court in excluding the evidence with reference thereto could not have been prejudicial to the defendants.

IY. Error was assigned in striking defendant’s motion for a new trial from the records on the ground that no copy thereof was filed with said motion. The ruling seems to have been in accordance with the provisions of the statute; hut, at any rate, it was not in the least prejudicial to the defendants, for in their appeal they have had the advantage of every ground for new trial set up in their motion. The judgment is affirmed.  