Wheaton v. Voorhis ( 1877 )

Van Brunt, J.

— It may be said that in the foregoing statement of the case, that the testimony of Mr. Yoorhis-has not been duly considered, but I am of the opinion that Mr. Yoorhis’ recollection as to what Mr. Willet told him about the disposition to be made of the eight per cent commission is based entirely upon the amounts of the checks drawn by him and given to Willet. There is nothing in this case which leads to the conclusion that Mr. Willet made any false statements to Mr. Yoorhis in regard to this loan, which must have been the fact if Mr. Yoorhis’ evidence is correct, and it is very easy to conceive by what process of reasoning Mr. Yoorhis would come to the conclusion, upon an inspection of his three checks, that Mr. Willet had told him that the $2,900 was to be paid to Mr. Wheaton. It seems to me, therefore, that we must conclude that Mr. Yoorhis is mistaken in relation to this matter.

The naked proposition which must be determined in this case, then, is whether the acceptance by the lender from the broker, of any portion of his commissions, constitutes usury ?

It is claimed, upon the part of the defense, that Mr. Willet in this transaction was the agent of the plaintiff, and that consequently the plaintiff is bound by his representations. I am unable to see that Mr. Willet was any more the agent of the plaintiff than he was of the defendant, in fact. Mr. Yoorhis was to pay him for his services in this matter, which would seem to indicate that he considered that Mr. Willet was his agent. But perhaps it is not of very great importance in the disposition of the question involved whether Mr. Willet was the plaintiff’s or defendant’s agent.

The case of Estervez agt. Purdy, decided in the court of appeals, but not yet reported, expressly decides- that the representations of the agent of the lender do not bind the principal unless authorized by him, or the fruits of such representations are received by the lender with knowledge of their origin.

The question, then, in this case would seem to be, did the plaintiff receive the money from Willet for the purpose of evading the usury law, or for the purpose of receiving more than seven per cent for the loan of his money. I think that both of these propositions may unhesitatingly be answered in the negative. The evidence seems to show, beyond dispute, that at the time of agreeing to make the loan the plaintiff was not, in any manner, influenced in the making thereof by the promise of Willet to divide any commission which he might make upon the loan. At the time of agreeing to make the loan the plaintiff had no knowledge what commission Willet was to receive from Voorhis, or whether he was to receive any commission, and his desire seems to have been to' invest his money in some good security at a legal rate of interest.

The plaintiff, in receiving this money from Willet, supposed that he was receiving a portion of that which belonged to Willet and which he had a right to dispose of as he saw fit. Under such circumstances I cannot see that there was any intent upon the part of the plaintiff to take from the defendant more than seven per cent for the use of his money.

The case of Alger agt. Gardner (54 N. Y., 360) is cited by the defendants as an authority to show that the case of Condit agt. Baldwin has been limited by subsequent decisions. The case of Estervez agt. Purdy (supra), shows that the court of appeals do not consider that the case of Condil agt. Baldwin has been at all restricted by the case of Alger agt. Gardiner.

There is, however, another objection raised by the plaintiff in this action to the defense of usury as claimed to be established by the evidence in this case, and that is, that there is a fatal variance between the allegation of the answer and the evidence. It seems to be held in the case of Hetfield agt. Newton (3 Sandf. Ch. R., 564), and cases there cited, that usury must be strictly proven as alleged, and any variance is fatal. The allegations in the answer in this case are, that the plaintiff took $2,900 in excess of legal interest for the loan or forbearance of the mortgage debt, while the evidence shows that the total amount received by the plaintiff was $2,125, a variance which, according to the cases above cited, is fatal.

To obviate this objection the defendants, at the close of the case, moved' to conform the pleadings to the proof. I do not understand that such a motion can ever be granted where the admission of the evidence has been promptly objected to, as was done in this case, upon the ground that the evidence did not tend to support the allegations in the answer.

I think, therefore, that the plaintiff is entitled to judgment of foreclosure and sale.