
    CARTER v. WEST.
    No. 2144.
    Decided January 23, 1911
    (113 Pac. 1025).
    UsuRY — Application op Payments. A recovery for money loaned •will be denied as unconscionable, where there has been repaid a sum amounting to the principal and fifteen per cent, per annum interest, notwithstanding a contract for more than five per cent, per month interest. (Page 383.)
    Appeal from District Court, Third District; Son. T. D. Lewis, Judge.
    Action by W. C. Carter against Mrs. E. E. West.
    Judgment for plaintiff. Defendant appeals.
    BeVERSBD AND REMANDED WITH DIRECTIONS.
    
      
      M. J. Sheckell and JE. A. Walton for appellant.
    
      A. B. Sawyer for respondent.
   STEAUP, J.

Tbis is a suit on a promissory note and for tbe foreclosure of a chattel mortgage given to secure it. It is alleged in the complaint that the note was executed on the 26th day of March, 1907, for two hundred and one dollars and thirty cents, payable on the 26th day of December following, with interest at the rate of nine dollars and five cents per month, and interest on interest at the rate of ten per cent, per month. It was also alleged in the complaint that various monthly and semimonthly payments of interest had been made from April, 1907, to October, 1908, amounting to about one hundred and forty-five dollars. It was further alleged that there was still due on the note the sum of two hundred and eighteen dollars, for which amount, and for an attorney’s fee, judgment and foreclosure was prayed.

It was alleged in the answer and found by the court that the note sued on was given as a renewal of a number of smaller notes theretofore executed by the defendant to the plaintiff in 1906 and 1907; that the total amount of money received by the defendant on account of all of the notes, including the one sued on, was one hundred and forty-two dollars and seventy cents; and that the defendant paid to the plaintiff in 1906, 1907, and 1908, on account of all of such notes, the sum of two hundred and .twenty dollars and sixty cents. That is, the court found that in 1906 and 1907 the defendant at various times borrowed from the plaintiff, in the aggregate, the sum of one hundred and forty-two dollars and seventy cents, and in 1906, 1907, and 1908, had paid to the plaintiff on account thereof the sum of two hundred and twenty dollars and sixty cents. Notwithstanding such findings, the court rendered a judgment in favor of the plaintiff and against the defendant in the sum of two hundred and thirty dollars and thirty-five cents, and an attorney’s fee,, and ordered the mortgaged property sold in satisfaction thereof. In doing so the court allowed the plaintiff about three hundred and eight dollars interest for the use of one hundred and fortj-two dollars and seventy cents, for a period of about three and one-half years, or at the rate of about sixty per cent, per annum. We think this is unconscionable. The court also found that the de- fendant was a woman of but little business experience, of no education, unable to read, and who could only write her name.

From the payments made by the defendant the plaintiff received the full amount of money loaned to the defendant and interest at the rate of fifteen per cent, per annum. We think the debt was fully paid.

The judgment of the court below is therefore reversed, and the cause remanded to the district court, with directions to enter conclusions of law and a judgment on the findings discharging the debt and the mortgage, requiring the plaintiff to surrender the note and mortgage for cancellation, and that they be canceled. The defendant is given costs in this court and in the court below.

It is so ordered.

FRICK and McCARTY, JJ., concur.  