East River Bank v. Hoyt , 29 How. Pr. 280 ( 1865 )

Denio, C. J.

The judgment rendered on the verdict for the defendants was reversed by the general term on appeal, and a new trial was ordered, on the ground of an alleged erroneous ruling in admitting the letter of J. W. Jennings in evidence, against the plaintiffs’ objection. The purport of the letter was an offer to extend to the defendants an accommodation to the amount of |1,0Q0, on condition that the defendants should give the bank paper for $1,500, on which interest was to be paid, and should leave $500 of the $1,500 with the bank until the paper should mature, when the defendants would be at liberty to draw it. The letter' contained the suggestion that money was worth more than seven per cent., and that the bank did not discount unless the borrowers had money on deposit in the bank. It was a suggestion, without any decent disguise, to lend the defendants the money, if they would pay an usurious premium... This does not seem to be questioned in the opinion of the supreme court, but, it is said, the letter was not evidence against the plaintiff. To determine this question, we are to take into consideration not only the facts appearing when the letter was offered, but those which were established in the subsequent stage of the trial; but if, upon the whole evidence, the letter was admissible, the judgment should not be reversed on account of the order in which it was given.

In examining these circumstances, we see in the first place, that the letter purports to have been Avritten at the bank, for the date and heading in effect so state. Then the writer was not merely a director of the bank, but a member of its discount board. The duties of that board are not stated, nor does it appear what authority a single member of it had. In the absence of such evidence, which it was easy for the plaintiffs to furnish, and which we cannot suppose the defendants had any means of showing, we should intend what we know to be usual, that each individual member of the discount committee is an organ of communication with customers needing discount, without authority, perhaps, to commit the board decisively, but whose recommendations are of considerable weight. The vote of the board or committee, as it should more properly be called, indicates that it was concerned in determining upon offers of customers for discounts. The remaining circumstance bearing upon the admissibility of the letter was, that the defendants presented themselves with the three notes of $500 each, precisely according to the suggestion of Mr. Jennings; that their proposal was entertained; that in effect, with the proceeds of two of the notes, they paid up the former note of $1,000, which had matured, and left the proceeds of the remaining note of $500 to their credit at the bank, to be drawn for when the note matured at the end of three months, and not before. The president testifies, fhat he told the defendant with whom the business was transacted, that if he wanted the discount he must keep a good balance, and that he promised that his balance should be reasonable thereafter. He denies distinctly that he told the defendant that money was worth more than seven per cent., and, also, that he had any knowledge of the letter of Jennings. The transaction actually consummated, was precisely such in form and substance as Jennings had suggested, and it is not denied but that he, as a member of the discount committee, participated in it.

I am of opinion that by connecting the facts thus established with the letter of Jennings, the letter was competent to be received in evidence for the consideration of the jury. I am, moreover, of opinion that independently of the letter, a very clear case of usury was found. The point in which the testimony of the president differed from that of the defendant Hoyt was verbal merely, and was not material. The character of the transaction, and particularly the material feature that $500 of the money borrowed, and for which interest was paid, was to be retained by the lender until the expiration of the credit, is conceded by all the evidence. It was usurious to stipulate for such an advantage, in that the case shows a contract for usury with scarcely an attempt at disguise. .

I am in favor of reversing the order appealed from, and affirming the judgment on the verdict.