Citation Numbers: 5 Daly 304
Judges: Daly
Filed Date: 5/15/1874
Status: Precedential
Modified Date: 2/5/2022
No usurious agreement was proved on the trial. It was not shown that the plaintiff exacted or agreed to take more than seven per cent, for the loan or forbearance of any money. It was not shown that any money was agreed to be or was advanced on the note in suit. The plaintiff’s version of the transaction by which be became the holder of the note was not contradicted by any other witness, and was supported by the writings introduced in the case. The person who acted as agent for defendants in transferring the note to plaintiff was not put on the stand, and no other person could testify as to the agreement upon which plaintiff got the note except the plaintiff himself. He swore that he received the note on a sale to the maker, Cozzens, through Livingston, of twenty-eight shares of the stock of the American Umbrella Frame Co., at $100 per share, the note being for $2,800; that a week afterwards he rnhde Cozzens, through Livingston, a loan of $2,600 on the stock, retaining the stock as collateral; that when he sold the stock for the note he knew he was going to make a loan on the stock; that when Livingston applied first for a loan, he, plaintiff, told him he couldn’t make a loan unless Cozzens purchased the twenty-eight shares of stock; that the stock was' not to be delivered until the note was paid.
Although there was no direct usurious agreement in this transaction, the defendants were entitled to have the jury pass upon the question whether the whole transaction was not a de
Exception was taken by defendants to the admission by the learned judge on the trial of the plaintiff’s evidence as to His intent in the transactions. There being no evidence of a direct or express agreement for usury, and the acts of the plaintiff depending for their illegal effect upon the intention of the parties, it was proper to allow him to testify as to his intention. The jury were, of course, bound to look into the acts themselves for such intention, but his declaration that he did not intend by these transactions, if equivocal in their nature, to take usury, was properly allowed to go to the jury for what it was worth (Cortland Co. v. Herkimer Co. 44 N. Y. 22). The case is to be distinguished from those in which a usurious agreement is distinctly proved, and no testimony of the usurer as to his intention can alter the illegal effect of his acts (Fiedler v. Darrin, 50 N. Y. 437).
Exception was also taken by defendants to the charge of the judge on the subject of intention. The charge “that there must be a positive intention on the part of both parties to the transaction to do what the law forbade, to constitute a usurious agreement,” was, of course, given to the jury with reference to this particular case, wherein there being no express agreement to take usury, the legality of the transaction depended on the intent. The charge “ that the plaintiff must have corruptly exacted and the defendants corruptly agreed to pay more than seven per cent, to constitute usury,” was proper when taken in connection with the explanation immediately made by the judge that the word “ corrupt ” is a word usually employed to characterize usury, which is an agreement to take that which the law forbids, a larger amount than seven per cent, per annum for the loan or forbearance of money. The jury could not have been misled by this instruction. Upon the whole charge the case was fairly submitted, and the first proposition laid down by the
The defendant Howry’s objections to the demand and notice of non-payment are not well taken. He lived out of the State, but occasionally came to this city, and when he did he transacted any business he had to transact at the office of defendant Eyder in this city; made that office his headquarters when he came to town during the year 1866; used to go there and write, but had no desk there, and paid no rent; notice, in the usual form, of demand and non-payment of the note, and that the holders would look to the indorsers for payment, was deposited in the post office of this city, addressed to him at Hew York city, in due time, on Hay 15th, 1867; on the 16th Howry was at defendant Oozzens’ office in this city, and was called upon by plaintiff with the protested note, and admitted he had notice that it had not been paid. The notice to him was sufficient (L. 1857, c. 416, § 3). The note, being an inland bill, was properly presented for payment and payment demanded bj the notary’s clerk, and the notices of protest, demand, &c., with the notary’s name printed at the bottom, were properly mailed to each indorser at the city of Hew York, by the same clerk. The clerk is to be regarded as authorized by the holder to do all these acts, because as clerk of the notary of the bank where the note was deposited for collection, he called for and got the note from the bank for the purpose, in the performance of his regular daily duty (Cole v. Jessup, 10 N. Y. 96; Gawtry v. Doane, 51 N. Y. 84).
The declarations of Livingston to Howry were properly excluded, because it clearly appeared from the evidence that he was not the plaintiff’s agent, but defendants’; and for that reason the writings subscribed by him were properly admitted.
The judgment should be affirmed.
Robinson and Larremore, JJ., concurred.
Judgment affirmed.