Goodwin v. Bishop , 50 Ill. App. 145 ( 1893 )

Opinion by the Court.

A bill having been filed by H. E. Lowe, trustee, and E. F. Bagley, successor, to foreclose a trust deed made by appellants to secure their note for $5,000, with interest thereon at seven per cent per annum, a decree was rendered from which this appeal is prosecuted.

It was urged in. the court below, and is here, that the loan was usurious; the statement of the answer as to this was as follows:

“And these respondents say that they did not, nor did either of them, receive the full sum of $5,000 from said complainants at the time of making said loan, nor at any time, nor did they receive any money at the date of said notes and trust deed, and so these respondents say that the amount claimed by said complainants is largely tainted with • usury.”

This was insufficient. It is not suffi cient at law or in chancery to plead in general terms that the transaction was usurious; the facts- constituting the usury must be set forth. Mosier v. Norton, 83 Ill. 519; Hoskins v. Cole, 34 Ill. App. 541; Dunham v. Tucker, 40 Ill. 520; Frank v. Morris, 57 Ill. 138.

The answer not being under oath, it was not necessary that the complainant should except thereto. Supervisors of Fulton Co. v. Mississippi & Wabash Ry. Co., 21 Ill. 338.

Even had usury been properly set up in the answer, we do not think that such defense ivas made out.

Appellant having applied to Lowe for a loan, voluntarily paid to him, the agent, a commission for procuring the loan, and also paid him for expense he had incurred in having the abstract of title examined.

The payment of these sums was entirely proper, and did not tend to make the transaction usurious. Anmondson v. Ryan, 111 Ill. 506, 510; Tulford v. Garrels, 132 Ill. 550, 554; Boylston v. Bain, 90 Ill. 283; Kihlholz v. Wolf, 103 Ill. 363; Hoyt v. Pawtucket Ins. Co., 110 Ill. 390; Cox v. Life Ins. Co., 113 Ill. 382.

The fixing of an amount to be allowed for solicitors’ fees was a matter committed by the complainants to the judgment of the court; the sum allowed was warranted by the evidence on that subject, and seems to have been reasonable and proper.

We see no objection to the course pursued by the chancellor upon' the coming in of the master's report.

The decree follows the law, and is just and equitable, and will be affirmed.