Opinion
Submitted May 15, 1936 —
Decided October 9, 1936.
1. The Small Loan act of 1932 does not make it a prerequisite to the voiding of a contract for a loan because of the commission of a misdemeanor, as defined therein, that the offender should have been convicted in a court of criminal jurisdiction.
2. An affirmative declaration in a small loan note that the borrower has no defense to any action which may be brought at any time for its collection, does not, for obvious reasons, create an estoppel. The provisions of the Small Loan act embody a public policy which may not be set aside by the parties to the note.
On appeal from a judgment of the District Court of the city of Trenton.
Before Justices BODINE and HEHER.
For the appellant, Albert B. Kahn ( Charles A. Malloy, of counsel).
For the respondent Louis Wallis and Lloyd A. Case, William E. Blackman.
There is nothing of substance to the point made by the appellant loan company that the commission of a misdemeanor, as defined in section 19 of the "Small Loan" act of 1932 ( Pamph. L., pp. 94, 106), does not operate to void the contract of loan, and render the loan uncollectable, unless and until there has been a conviction of the offender in a court of criminal jurisdiction. The statute does not make conviction a prerequisite to the operation of this provision, either expressly or by fair intendment. The term "misdemeanor" was employed to delimit the class of offenses entailing these consequences, and not to denote a formal adjudication of the guilt of the offender in a court of criminal jurisdiction, a tribunal having a radically different function, as the minimum requirement of voidance.
And the makers' affirmative declaration in the note that they "have no joint or several defense to any action, either at law or in equity, which may be brought at any time for" its collection does not, for obvious reasons, create an estoppel. The statute embodies a public policy which may not thus be set at naught by the parties themselves. It is beyond their power to waive statutory provisions of this character.
Judgment affirmed, with costs.