Blaisdell v. Steinfeld

137 P. 555 | Ariz. | 1914

ROSS, J.

Appellees, by a motion to dismiss, have attacked the sufficiency of the appeal bond. It is said the bond recites the judgment and order denying the motion for a new trial, but its condition is merely that appellant will pay all costs that might accrue on the “appeal,” and it is therefore void.

The bond recites a judgment against appellant, a motion for new trial, and an order overruling the motion, and proceeds: “And the said H. W. Blaisdell did then and there, and on said day in open court, give notice of appeal to the ,-.supreme court of the state of Arizona from the said judgment ..and from the said order denying his motion for a new trial aforesaid; and whereas the clerk of said superior court has -.fixed the probable amount of the costs of said suit of both the appellate court and the court below at the sum of two hundred and fifty dollars ($250.00), and the said H. W. Blaisdell desires to perfect his said appeal by filing a bond as required by law: Now, therefore, if the said H. W. Blaisdell, appellant, the principal herein, shall prosecute his appeal with effect, and shall pay all costs which have accrued in the court below, or which may accrue in the appellate court.

It will be observed that the bond recites but one notice of appeal, and that notice of appeal was from the judgment and order denying motion for new trial. The bond is as provided by paragraph 1506, Revised Statutes of 1901, “conditioned that such appellant . . . shall prosecute his appeal . . . with effect, and shall pay all costs which have accrued in the court below, or which may accrue in the appellate court.” It is contended by appellant that according to paragraph 1493, Revised Statutes of 1901, which provides that an appeal may be taken from any final judgment and from any of the orders mentioned in section 1214, there is but one appeal. Whether he is right in this contention or not we do not think necessary to decide, as we are satisfied that there is but one appeal in this ease. In jurisdictions where the appeal from the judgment and order refusing a new trial are treated as separate appeals, one bond conditioned as the bond in this case has been held sufficient. Bell v. Staacke, 159 Cal. 193, 115 Pac. 221; Granger v. Robinson, 114 Cal. 631, 46 Pac. 604; Pirrie v. Moule, 33 Mont. 1, 81 Pac. 390.

We do not think the case of Dean v. Territory, 13 Ariz. 152, 108 Pac. 476, relied upon by appellees, is in point. In that case the bond recited three separate appeals and contained a single obligation.

Appellees have also filed a motion to strike certain of appellant’s assignments of error, alleging their insufficiency. The practice of striking assignments that fail to conform with the rules of the court or with law has never been recognized by this court. According to rule 8 of the rules of this court (14 Ariz. xliii, 126 Pac. xi), “an objection to the ruling or action of the court below will be deemed waived in this court, unless it has been assigned as error, in the manner” provided by the rules. An assignment so defective as to raise no question for this court to decide is as if no assignment had been made or attempted to be made, and any objection to tbe ruling or action of the trial court thus made ‘ ‘ will be deemed waived. ’r No motion to strike is necessary, but objection may be made by calling the attention of the court to the defective assignment.

The appellant makes eight assignments of error, three of which are unquestionably good, and, as they present all the questions we are asked to pass upon, it is unnecessary for us to refer to or discuss the others. The assignments that we shall consider are:

• (1) “That the findings of fact do not sustain the judgment in this: That, as the court found that the ten per cent commission was only to be paid Steinfeld in the event he himself made. a sale, there was no consideration whatsoever for this agreement, Steinfeld not having made any sale; and as it was alleged in the complaint, and admitted in the answer, that Blaisdell, before commencing this suit, had notified Steinfeld that he rescinded his (Steinfeld’s) right to sell, the court should have adjudged and decreed that the contract of July 2, 1910, was canceled, and should have ordered Steinfeld to return to Blaisdell the $10,000 of Yuma Electric and Water Company bonds and $4,000 of Yuma gas bonds to Blaisdell, without any terms or conditions whatsoever. The court erred in rendering its judgment requiring Blaisdell to make new proof or rescission of the commission agreement and in fixing terms as set forth in the judgment. ’ ’

(2) “The court erred in not finding, from the evidence, that the contract to pay Steinfeld a commission of ten per cent upon the sale of Blaisdell’s properties was usurious and void. ’ ’

('3) “The court erred in not finding, from the evidence, that the consideration to Blaisdell for the fifteen per cent of the bonds, stock, and real property that he transferred to Steinfeld, was a usurious consideration and therefore void, and further erred in not finding said contract unconscionable. ’ ’

1. Under the findings as well as the claim of right to hold the $10,000 par value of bonds of Yuma Electric and Water Company and $4,000 par value of bonds of Yuma Cas Company as set forth in defendants’ answer, the appellant was entitled to a judgment directing their return to him. The findings are to the effect that Steinfeld was to have ten per cent commission only in case he effected a sale of the properties, and that there had been no sale. That Steinfeld’s contract of agency to sell had been revoked before the institution of suit was admitted in the answer. These bonds were placed with Steinfeld to secure the payment of the ten per cent commission in case he earned the commission, and that could only be by his effecting a sale of the property.

“Nothing is better settled in the law than that an authority to sell land, when not coupled with an interest, may be revoked at the will of the principal.” Kolb v. Bennett Land Co., 74 Miss. 567, 21 South. 233; Jayne v. Drake (Miss.), 41 South. 372; Simpson v. Carson, 11 Or. 361, 8 Pac. 325; John L. Rowan & Co. v. Hull, 55 W. Va. 335, 104 Am. St. Rep. 998, 2 Ann. Cas. 884, 47 S. E. 92. Any unilateral contract of agency, whether it be to sell personalty or realty, may be revoked at the will of the principal.

Further, defendants’ answer precludes their right to hold said bonds as security for a possible future sale. The answer says: ‘ ‘ That the consideration of said commission was service already rendered by said Steinfeld in his endeavor to sell and dispose of said property, and of further efforts to be made by said Steinfeld to sell and dispose of said properties, and which efforts have been made at great expense of time and money. ...” The prayer to the answer is: “That it be decreed that Albert Steinfeld shall hold as security for the payment of commission earned in regard to the sale of real estate. ...” The answer was drafted on the theory that appellant had canceled and rescinded Steinfeld’s agency and authority further to act in the matter of selling the properties of appellant. Nor does the fact that Steinfeld had been appointed by the Yuma Electric and Water Company its “sole and exclusive agent” for the purpose of selling its property, with the agreement on its part to pay him ten per cent commission on any sale, aid the judgment, for the reason that such agreement was outside the issues made by the pleadings, and further did not pretend to pledge appellant’s bonds or any other bonds or property as security for commissions he might earn under his agreement with the company. The. judgment should have decreed the appellant the owner of said bonds, free from any claim of lien, and directed their return to the .appellant.

2. This assignment makes the proposition that the court erred in not finding from the evidence that the contract to pay Steinfeld a commission of ten per cent upon the sale of' appellant’s properties was usurious and void. It is the contention of appellant that by the terms of the contract of July 2, 1910, itself, and the undisputed evidence in the ease, the only consideration to appellant for this agreement to pay appellee Albert Steinfeld a commission of ten per cent when his property was sold, was Steinfeld’s agreement to lend him $20,000 at ten per cent per annum for six months, with an option to extend payment for one year, and like extension of time in which to pay the $25,000 and interest then owing Steinfeld. That defendants’ answer “avers that on or about the 2d day of July, 1910, and at the time of the execution of' said contract of said date, the said Blaisdell was indebted to the said Steinfeld in the sum of $25,000. That at said time the said Steinfeld extended the time of payment of all of said indebtedness then due for the period of six months,”' taking notes therefor bearing ten per cent interest, payable monthly. This statement in the answer should be considered in connection with the contract which mentions “indebtedness now existing and the money now. owing” from Blaisdell to Steinfeld.

A perusal of the July contract will convince anyone that, the writer thereof was determined, at the expense of much repetition and great prolixity, fully and clearly to state the agreements as explained and detailed to him. There is no' suggestion that the contract contains any stipulation, term, or obligation not intended or fully understood and agreed to. The preamble of the contract recites appellant’s indebtedness to Merchants’ National Bank and appellee Steinfeld, and then says: “And, whereas, the said Blaisdell is desirous of obtaining assistance from the said Steinfeld to pay said indebtedness unto the said bank, or a part thereof, and is further desirous of securing the said Steinfeld for any moneys, he may now advance or loan for said purpose and is also-desirous of further securing the said Steinfeld upon the indebtedness now existing and the money now owing, as well as the moneys hereafter to be owing by said Blaisdell unto the said Steinfeld, and the said Steinfeld is willing to assist the said Blaisdell in said matters, and upon the terms and. conditions hereinafter set forth: Now, therefore, in consideration of the sum of one dollar ($1.00), cash . . . and of the covenants and conditions hereinafter contained, and to be-kept and performed.” The “terms,” “conditions,” and “covenants” to be kept «and performed then follow and are in short: That Steinfeld would pay to Merchants’ National Bank $20,000 for Blaisdell’s credit and endeavor to secure from bank an extension of six months from July 2, 1910, for Blaisdell to pay the balance owing the bank. Blaisdell was to give to Steinfeld his two ten per cent $10,000 notes secured by $50,000 par value bonds of Yuma Electric and "Water Company. Steinfeld at his option could pay to Merchants’ National Bank balance of $20,000 within four months, in which event Blaisdell was to execute his note to Steinfeld for amount bearing ten per cent and secure same with $50,000 par value bonds of Yuma Electric and Water Company. As further security for loans and forbearances, Blaisdell was to assign and transfer all equities and rights of his in any stocks and bonds of the Yuma Electric and Water Company and Yuma Gas Company and execute to Steinfeld a mortgage on his real property in Yuma county. Then follow the terms, prices, and conditions under which Blaisdell may sell or dispose of stocks, bonds, and real estate. Then follows the “term,” “condition,” or “covenant” in regard to Steinfeld’s commission, which “is to be kept and performed,” and in consideration of which “the said Steinfeld is willing to assist the said Blaisdell in said matter”; that is, lend him money at ten per cent upon security selected and approved by him.

The stipulation as to Steinfeld’s commission is, in effect, that he shall have a commission of ten per cent upon the amount received for the properties of the Yuma Electric and Water Company and the real estate regardless of who shall make or negotiate the sale, to be paid at time of sale, and to be paid regardless of any indebtedness of Blaisdell to Steinfeld and however remote the sale is made from July 2, 1910, and also that sale shall be made through Steinfeld. In the event that sale is not made until after Blaisdell has discharged all his obligations to Steinfeld, then Blaisdell was to leave with Steinfeld sufficient securities to secure the payment of said commission when the sale or sales shall be made.

It seems to us that the contract has set forth in language most clear, explicit, and convincing that the so-called commission on sale of property was in part at least the moving consideration to Steinfeld to lend Blaisdell money and to grant extensions of time on money already owing. Under the contract this ten per cent was not for services to be rendered by Steinfeld, for he nowhere agreed to render any services in effecting a sale or for any other purpose. His obligation was discharged by lending the money and granting extension of time. Blaisdell’s obligation was “kept and performed” on his part when he paid all that he owed, principal and interest, and ten per cent “commission” on sale price of his property. That the payment of the principal and interest was considered an incomplete discharge of his “covenants” is shown by the provision in the contract to the effect that, if the property was not sold before the satisfaction of his obligations, then and in that event security should be left with Steinfeld for commissions when sale was made.

Notwithstanding the clear meaning and import of the language used in the contract, defining Steinfeld’s right to ten per cent commission, in his answer he states that the consideration for said commission was services already rendered and services to be rendered in the sale and disposition of the property, and in his answer insists that he had earned his commission by such services, even though no sale of the property had been made by him or anyone else, and insists on retaining security for commission in the face of a revocation of his authority to sell the property, an untenable position under the law as we have heretofore shown, but indicating that he not only at the time of the execution of the contract of July, but at the time of taking issue with plaintiff’s cause of action, thought himself entitled by the terms of the contract to the stipulated commission. On March 4, 1912, Steinfeld wrote Blaisdell, ‘ ‘ If you finally conclude not to negotiate a sale at the present time, on account of the conditions not being opportune, then I believe you ought to turn over to me the ten per cent interest in all your properties, and cancel that part of your contract existing between us”; and again on March 9, 1912, in reply to a letter of Blaisdell in which the latter said, “In regard to your commission of ten per cent for selling the property, I do not see how you can ask for that until you have made a sale.” Steinfeld said: “With reference to my commission, I shall expect of course that the contract I hold with you and your company shall be lived up to in letter and spirit. If you will remember, the object, of making this contract was to make a sale, whether I made it, or you, or anybody else made it, and that in such an event I was to receive the commission stipulated. You also remember what the consideration of this commission was, of my ■extending to you an additional line of credit and extending the time of payment of the remainder of the obligation. ’ ’ It is true that Steinfeld in his oral testimony stated that he did not expect any commission unless he was instrumental in making a sale of the property, a position so at variance with his answer filed in the case and with his letters above quoted as not to be reconciled. By adopting the construction placed upon the contract by appellee Steinfeld, as contained in his letters, the terms of the contract are upheld. By adopting the construction now contended for by appellees would be to give the contract a meaning not to be found in its language, but contrary and foreign to its language. The plain, clear, and solemnly written and executed contract should prevail as the measure of the rights of the contracting parties. The contract then between appellee Steinfeld and appellant Blaisdell was that Steinfeld would grant to Blaisdell an extension of time for six months, with an option for one year, on the $25,000 that Blaisdell owed Steinfeld on July 2, 1910, and lend him $20,000 more for like time, for which Blaisdell promised and agreed to pay ten per cent interest per annum and ten per cent on the sale price (estimated at $200,000 to $250,000) of property pledged as security whenever sold, either during life of loan, or afterward, and regardless by whom sold. It is clear that Blaisdell here agreed to pay more than twelve per cent per annum for the use of the $45,000. It remains to apply the law to such a contract.

Section 1, chapter 84, page 221, Laws of 1909, provides that the legal rate of interest in Arizona, in the absence of an agreement, shall be six per cent per annum, but that parties may agree in writing to a different rate, not to exceed twelve per cent per annum. Section 2, Id., is that “any person so contracting for a greater rate of interest than twelve per cent per annum shall forfeit all interest so contracted for in excess of such twelve per cent. ...”

“In deciding whether any given transaction is usurious or not, the courts will disregard the form which it may take and look only to the substance of the transaction in order to determine whether all the requisites of usury are present. These requisites are: (1) An unlawful intent; (2) the subject matter must be money or money’s equivalent; (3) a loan or forbearance; (4) the sum loaned must be absolutely, not contingently, repayable; and (5) there must be an exaction for the use of the loan of something in excess of what is allowed by law. If all these requisites are found to be present, the transaction will be condemned as usurious, whatever form it may assume, and despite any disguise it may wear. But, if any one oof these requisites is lacking, the transaction is not usurious, although it may bear the outward marks of usury.” 39 Cyc. 918, 919.

As Lord MANSFIELD said in Floyer v. Edwards, Cowp. 112, 114, 98 Eng. Reprint, 995: “Where the real truth is a loan of money, the wit of man cannot find a shift to take it out of the statute.”

The “unlawful intent” referred to is presumed “from the mere fact of intentionally doing what is forbidden by statute. It is not necessary that the parties shall know that in so doing they are violating the law.” 39 Cyc. 920. “When, in addition to legal interest, the lender exacts of the borrower, as a condition of the loan, or forbearance, an additional sum, the loan is tainted with usury, which cannot be cloaked by calling the illegal exaction 'commission' or 'bonus,’ or by any other euphemistic name.” 39 Cyc. 971.

In Weaver v. Burnett, 110 Iowa, 567, 81 N. W. 771, the court quotes Chancellor WALWORTH in Colton v. Dunham, 2 Paige (N. Y.), 267, as follows: “Whenever, by the agreement of the parties, a premium or profit beyond the legal rate of interest, for a loan or advance of money, is, either directly or indirectly, secured to the lender, it is a violation of the statute, unless the loan or advance is attended with some contingent circumstances by which the principal is put in evident hazard. A contingency merely nominal, with little or no hazard to the principal of the money loaned or advanced, cannot alter the legal effect of the transaction. . . . Where there is negotiation for a loan or advance of money, and the borrower agrees to return the amount advanced at all events, it is a contract of lending; . . . and whatever shape or disguise the transaction may assume, if a profit beyond the legal rate of interest is intended to be made out of the necessities or improvidence of the borrower, or otherwise, the contract is usurious.” See, also, the following cases: Scott v. Fabacher, 176 Fed. 229, 100 C. C. A. 147; Scott v. Lloyd, 9 Pet. 418, 460, 9 L. Ed. 178; Buttrick v. Harris, 1 Biss. 442, Fed. Cas. No. 2256; Inland Trading Co. v. Edgecombe, 57 Wash. 257, 106 Pac. 768.

We think the contract of July 2, 1910, itself, and the evidence at the trial, conclusively show that the ten per cent of sale price of property provided for was a part of the consideration for loan of money and forbearance on money; that the so-called commission under the contract was to be paid at all events; and that the agreement to pay it was as certain as the promise to repay the principal indebtedness with interest, and that its payment under the contract was not contingent upon Steinfeld’s effecting a sale of the properties, but was an unconditional promise to give Steinfeld ten per cent of the sale price of property whenever sold by Blaisdell or anyone else. It follows that the court erred in not finding, from the evidence, that, the contract to pay this additional ten per cent of the sale price of property to Steinfeld was usurious and void.

3. The contract of January 19, 1911, it is charged, by the next assignment, is affected with the same infirmities as the July contract. It is said that the court erred in not finding from the evidence that the consideration for the transfer of fifteen per cent of the bonds, stock, and real property to Steinfeld was a usurious consideration and void, and further in not finding that said contract was unconscionable.

The trial court found that appellant, in consideration of appellee Albert Steinfeld’s becoming “interested with plaintiff in his (plaintiff’s) enterprise at Yuma, Ariz.,” “freely, and without collusion, duress, or compulsion of any kind, and for such consideration agreed to give, of his own voluntary offer,” said fifteen per cent of bonds, stocks, and lands. “That the real, true, and only consideration for the transfer of said fifteen per cent of said bonds and stock and said lands . . . was the services of said defendant to be rendered by said-defendant unto the plaintiff, and that the consideration therefor was not the loaning of monéy or the forbearance on money lent or extension of time. That the said defendant did thereafter render the services agreed on.” That the contract of January 19, 1911, was not usurious. This finding supports the two theories set forth in appellees’' answer: (1) That the fifteen per cent was a voluntary gift to Steinfeld in order to have him become-identified with appellant in his Yuma enterprises; and (2) that the fifteen per cent, was for aid, services, and assistance of Steinfeld to be rendered appellant. It is the contention of appellant that the evidence shows that the only consideration for the fifteen par cent of his property was the lending of money and extension of time on loans, as alleged in his complaint.

The evidence is that from July, 1910, to some time in November, 1910, both appellant and appellee Steinfeld were trying to find a buyer for the Yuma properties, and that they had been unsuccessful. That the main reason for offering the property for sale was to enable appellant to pay off his indebtedness to Steinfeld, Merchants’ National Bank, and others, in all amounting to about $100,000. All this-time the demands on the Yuma plants were increasing, and it was necessary that they be enlarged and improved to meet the demands. Blaisdell wanted financial assistance from appellee Steinfeld. These facts are gleaned from their letters to each other. On December 23, 1910, appellant went to Tucson for the purpose of borrowing more money from Steinfeld. Both testified as to what each said on this occasion and as to their agreement. They did not agree as to what took place, but Blaisdell left for Los Angeles with the understanding that Steinfeld would cause their agreement to be reduced to writing for their signatures. Steinfeld alone furnished the data of the contract to the lawyer who wrote two instruments that were satisfactory to Steinfeld, and he caused them to be sent to Blaisdell. One of these instruments was a bill of sale from Blaisdell to Steinfeld of fifteen per cent of the stock of the Yuma Electric and Water Company and the Yuma Gas Company, fifteen per cent of Blaisdell’s bonds of said corporations; and fifteen per cent of all the real estate owned by Blaisdell or Blaisdell and Ms wife in Yuma county, Arizona. This bill of sale recited the consideration for the transfer as follows: “That whereas the party of the second part has rendered valuable services unto the party of the first part, and for and on his behalf, and for his use and benefit; and whereas, the party of the first part has received other valuable consideration from the said party of the second part; and whereas, the party of the first part is desirous of obtaining the further services of the party of the second part in and about certain of his business enterprises. ’ ’

■ The other instrument that Steinfield caused to be drafted as covering his and Blaisdell’s oral agreement of December 23d, and which was sent to Blaisdell at the same time that the above bill of sale was sent, provided for an extension of time for two years from January 1, 1911, for the payment of the $45,000 then owing Steinfeld by Blaisdell and for the loan to Blaisdell of $7,500. In fact it is in all material ways the same instrument as the one dated January 19, 1911, found in statement of ease, except that it did not provide that Steinfeld should take up the $20,000 Blaisdell owed the Merchants’ National Bank, as does the contract of January 19th.

The two instruments sent to Blaisdell were never executed for the reason that they were not satisfactory to Blaisdell. They may be taken, however, as a true and correct reflex of Steinfeld’s understanding of the verbal agreement between them on December 23d, for they were drawn upon data furnished the draftsman by him.

The preamble to the bill of sale sent Blaisdell recites the consideration for the fifteen per cent of appellant’s property to be “valuable services” already rendered and “further services” to be rendered Blaisdell “in and about certain of his business enterprises.” This recital does not support the idea that Blaisdell was voluntarily giving this property, as was found by the court. The property was to be turned over to him for “services” rendered and to be rendered. The attorney who drew these instruments knew nothing of this transaction until he was told of it by Steinfeld, and in drawing them it may be assumed that he followed the instructions of Steinfeld. On January 19, 1911, Blaisdell went to Tucson and again took up the matter of their agreement which was begun on December 23d. After agreeing between themselves as to the terms of their contract, they went to the offices of Mr. S. L. Kingan, an attorney, for the purpose of having him reduce it to writing.

.We will use Mr. Steinfeld’s testimony as to what was said and done after arriving at Mr. Kingan’s office:

“Mr. Blaisdell came to Tucson. He did not execute the agreements which I had mailed to him. He said there was an objection to it on account of the provision of an indebtedness which was provided for there, and we discussed the matter somewhat. This was in the store in my office. And he also stated that the fifteen per cent which he had agreed to give me was intended by him to cover—to cover the amount of the commission contract, and not as a separate gift of the bonds, of the interest at that time. I said that was not the understanding, nor was it the agreement, because the contract, commission contract, had no bearing whatsoever on this and was not discussed at that time and that I would not accept that. He apparently was satisfied, said that he did not understand it that way,' but was satisfied to go ahead with it, and we after—and from my office we went to Mr. Kingan’s office to prepare the papers. He came up here for that purpose. We went to Mr. Kingan’s office and told. Mr. Kingan what we had agreed to, and Mr. Blaisdell again said that he thought I ought to cancel the contract of—commission contract, which I again refused to do. Then Mr. Blaisdell said, ‘Well, now, you obligate yourself to pay that other $20,000 I still owe the Merchants’ National Bank of Los Angeles?’ And after thinking the matter over a little while, I said: ‘Yes, I will; I will do that.’ After I had agreed to pay this debt of the Merchants’ National Bank, Mr. Kingan then said, ‘Now, it seems to me that this contract that you, gentlemen, want to draw up here might be considered usury.’ And that led on to the matter about Mr. Blaisdell wanting—suggested (no, I think I suggested; I don’t remember who suggested)—that these securities which I was holding of Mr. Blaisdell’s, consisting of a lot, those that are enumerated here in this trial here, should be returned to him, to which I agreed. Up to that time I wish to state—up to that time we had reached Mr. Kingan’s office, no mention whatsoever—no intimation had ever been made or nothing has been discussed or talked about usury, or any form of usury, in connection with it. It was a perfectly plain transaction of its kind at that time. I had no idea that there was any usury in it. Mr. Kingan first suggested the usury. I asked Mr. Kingan why it was usury, and he said he did not know it was usury, but it might be considered so. And then I suggested that perhaps these securities, if they were returned to him, asked him whether that would be considered—would modify it in any way; and he seemed to think that that was all right. That was all that was said in that morning conversation. I saw Mr. Blaisdell again that day, in the afternoon, in Mr. Kingan’s office. We went to Mr. Kingan’s office—that was rather late in the afternoon—to see whether the papers were ready and to execute them. Mr. Kingan has the papers prepared and Mr. Kingan again suggested that he was not entirely satisfied with the contract; that it was—that it might be considered usurious. And I asked him why. And he says, ‘Now, you are returning these papers, which there seems to be some— some lack of consideration here for this.’ Then I said to him, I says, ‘But I am rendering services here for this fifteen per cent which Mr. Blaisdell is giving me.’ And then Mr. Blaisdell said, ‘Yes, Mr. Steinfeld is to render me services; he has become identified with me; I want him with me, associated with me, and for that I am giving him this fifteen per cent.’ Mr. Kingan said, ‘Well, now, if that is so, that is different here, and I will reconstruct this contract. ’ Mr. Blaisdell at that time was very anxious to get away on that day, and he says, ‘Well, now, I am very anxious’— asked him how long it would take him to do that. He said it was late in the afternoon, and he couldn’t get through with that in time. And Mr. Blaisdell was very anxious to get away, and he says, ‘Well, now, Mr. Steinfeld and myself have known each other for a great number of years, and there will never be any such question raised, if there is such a thing to be raised; and we understand each other, and this is the understanding.’ And Mr. Kingan said, ‘Well, now, if Mr. Steinfeld is satisfied, we can always prove the real consideration in this matter.’ And the contract was then executed at that time as it was then prepared. Q. Well, ■then, state what was the consideration for the transfer of the fifteen per cent to you? A. The services which I was to render Mr. Blaisdell then, and which I did render him. ’ ’

Mr. Kingan’s statement as to what was said and done in his office is as follows: “Mr. Blaisdell and Mr. Steinfeld came to my office on or about January 19, 1911, in the morning, I should judge about 9:30. They came together. I was requested to draw a contract. It is rather difficult for me to state just who said this and who said that. I can •simply tell you what took place there, as near as I can remember it. They both came into the office, and Mr. Steinfeld, as I now remember, said that they desired a contract. He and Mr. Blaisdell desired a contract drawn; and they ¿ave me the data. Let me have one of those contracts, please. (Counsel hands paper to witness.) I think Mr. Steinfeld ¿ave me the information which I am going to state: . . . That Mr. Blaisdell owed Mr. Steinfeld, as I remember it, .$45,000, of which $25,000 he had owed him from the 2d of July, 1910, and $20,000 for money which he had paid the Merchants’ National Bank of Los Angeles under the contract of July 2, 1910; that the time of payment of that money was to be extended until the 1st day of January, 1913; that Mr. Steinfeld was to loan Mr. Blaisdell $7,500, and Mr. Blaisdell was to advance a like amount and was to loan the total sum of $15,000 to the Yuma Electric and Water ‘Company, and Mr. Blaisdell made certain representations ..about the indebtedness of the company; and that Mr. Blaisdell was to convey to Mr. Steinfeld fifteen per cent of the amount of the bonds of the Yuma Electric and Water Company, fifteen per cent of the gas bonds, and fifteen per cent •of the real estate. I then said that the transaction struck me as usurious; that it appeared that Mr. Steinfeld was extending time of payment of certain money, loaning him -other money, and getting fifteen per cent of this property, fifteen per cent of the bonds, and fifteen per cent of the stock, and fifteen per cent of the real estate. I said I didn’t think a contract of that sort was either—I said illegal, or ..some such term as that. Mr. Steinfeld then said, ‘What is -the matter with it?’ Mr. Blaisdell and Mr. Steinfeld'were both there, sitting at my desk. ‘Well,’ I said, ‘there is no .consideration for this fifteen per cent.’ Mr. Steinfeld then said, ‘Mr. Blaisdell wants me to release, or I will release to him, certain securities of Mr. Blaisdell’s, which I now hold, namely, $21,000 note, or such an amount, of the Blaisdell Company, indorsed by Mr. Blaisdell, and that—and ■other securities. If I release those to Mr. Blaisdell will that be a good consideration?’ And I said, ‘Yes.’ And I said, ‘Send me down a list of those securities.’ Mr. Blaisdell and Mr. Steinfeld then left the office, and in a little while Mr. Steinfeld sent me the list of securities which is released in that instrument. I then proceeded—Mr. Blaisdell, as I remember it, told me that he wanted to get away that day. I then proceeded to draw these contracts which bear the date of January 19th. As soon as I thought about the matter, I saw that what I had stated to Mr. Blaisdell and Mr. Steinfeld about the consideration was not correct, and the contract still appeared to be usurious; and I think, to the best of my recollection, or my recollection now is, that it is because I had that belief that I drew the instruments separately. I divided, of my own volition, the one proposition that both of them had given me, and put it in two instruments—these two instruments which are executed. I did that of my own volition, and I did that because I was under the impression and belief, after I thought over the matter, that it appeared to me to be a usurious contract. I drew those papers in the form that they now are—in the form that they are in the pleadings. After I drew them I had a further interview with Mr. Blaisdell, or Mr. Steinfeld. I didn’t see either of them until (it must have been 4 or 4:30 o’clock in the afternoon) Mr. Blaisdell and Mr. Steinfeld came in together. They came in together in my back room, and I was sitting at the desk;, and they sat down. Mr. Blaisdell sat in a chair at my right, between the desk and the wall, and Mr. Steinfeld sat directly in front of me, opposite me, across my large desk. I had the two contracts before me. I said to them, ‘I am still not satisfied about these contracts.’ Mr. Steinfeld said, ‘What is the matter with them?’ or words to that effect; and I said, ‘Well, they strike me as usurious.’ And Mr. Steinfeld again asked why, and I might have mentioned—I think I did say, ‘Well, there is no consideration for this fifteen per cent.’ Mr. Steinfeld then leaned across the table toward me and said, ‘Oh, but I am to render services for that fifteen per cent.’ Mr. Blaisdell, sitting’ at my right, said, ‘Yes, Mr. Steinfeld is to become identified with me in these various enterprises.’ He used the words ‘ identified with me in these enterprises. ’ And I said, ‘Why didn’t you tell me this before?’ And Mr. Steinfeld said, ‘Oh, I don’t know; I don’t know why I didn’t tell you’; and no satisfactory answer was made. And I said, ‘Well, that being so, my doubts are removed. This is an entirely different' proposition, and I want to redraw these instruments, to set forth the real situation.’ Mr. Blaisdell then said, ‘I don’t want to stay over here another day; I want to catch this evening’s train.’ I don’t know where he said he was going to, but I think to Los Angeles or Yuma. He said, ‘Mr. Steinfeld and I are old friends; we will never have any trouble about this matter.’ And I said, ‘All right, go ahead and sign up these papers’; and the papers were then signed. . . . Mr. Blaisdell requested Mr. Steinfeld to relinquish the ten per cent commission under the contract of July 2, 1910, for the sale of the property. Mr. Steinfeld said, ‘No, I won’t relinquish that. I have done a lot of work in regard to the sale of the property. I have negotiations,’ as I remember now, ‘pending. I think I have earned that commission, and I won’t give it up.’ Mr. Blaisdell then said, ‘Well, Mr. Steinfeld, will you absolutely agree to take care of the Merchants’ Bank, the $20,000 that is still due the bank?’ And Mr. Steinfeld said, after some hesitation, he says, ‘Yes, I will do that; I will agree to pay that $20,000 absolutely when thej’’ call on me.’ I overheard that. . . . There wasn’t anything about a gift—nothing said about a gift, Mr. Hupp. What I testified to this morning was that Mr. Blaisdell asked Mr. Steinfeld to release the ten per cent commission. ... I did not understand then that Mr. Blaisdell was making a present of this fifteen per cent for the purpose of securing Mr. Steinfeld’s valuable presence in his company and helping him out. Mr. Steinfeld didn’t state to me why Mr. Blaisdell was giving this fifteen per cent at that time. I cannot tell you what had been agreed upon before they came to the office.”

It seems hardly necessary to enter upon an analysis of the above testimony for the purpose of ascertaining its meaning. The witnesses purport to detail what took place at the last meeting of the contracting parties between whom negotiations had been pending from December 23, 1910, np to the date of conversation January 19, 1911, in which the subject matter of the transaction was loan of money and extension of time by Steinfeld to Blaisdell, upon interest and security, and the transfer as a part of the same transaction by Blaisdell to Steinfeld of an interest agreed and settled in this meeting to be fifteen per cent of certain property of Blaisdell’s. Part of the consideration of the transaction (the loan of money and extension of time by Steinfeld and transfer of property by Blaisdell) was that Steinfeld would obligate himself “to pay that other $20,000” that Blaisdell owed the Merchants’ National Bank. This Steinfeld agreed to do. Until this promise was included in the contract, there had been no meeting of the minds of the contracting parties. Blaisdell until then had been insisting that he should transfer to Steinfeld but five per cent of his property, which, with the ten per cent of the July contract, would make the fifteen per cent; Steinfeld refusing the transfer of five per cent and insisting that the fifteen per cent was in addition to and independent of the ten per cent he was to receive under the July contract. Blaisdell made it a condition of the contract before acceding to Steinfeld’s demand that the latter would agree unconditionally to take up the balance he then owed the Merchants’ Bank, $20,000. Up to this time there were only negotiations. Their dealings became a binding contract 'when their minds came together in harmonious agreement. That Steinfeld’s agreement to take care of Blaisdell’s indebtedness to the bank entered into the consideration of their contract is significantly emphasized by the absence of any mention thereof in the draft of the contract that Steinfeld caused to be drawn and sent to Blaisdell covering their negotiations at their first meeting of December 23, 1910. This item first appears in their last meeting in Mr. Kingan’s office January 19, 1911, and is specifically set forth in the contract of that date as one of the “covenants and conditions” thereof.

The two instruments of January 19th were not two contracts. They were but one contract. As Mr. Kingan says: “I divided, of my own volition, the one proposition that both of them had given me.” Any consideration in either was a consideration for the other. They must stand or fall together. The recited consideration, (the releasing to Blaisdell of certain of his stocks and bonds and a note held by Steinfeld) in the instrument transferring the fifteen per cent of Blaisdell’s property was not relied upon in the court below, nor in the presentation to this court, as a sufficient or. any consideration for such interest.

There is no substantial evidence to support the court’s finding that this fifteen per cent of Blaisdell’s property was a voluntary gift. Kingan says he heard no mention of its being a gift by either of the parties. The value of the fifteen per cent of Blaisdell’s property was $37,500, and five per cent would be $12,500. We submit that it seems to us a contradiction in human nature to refuse a free-will offering of $12,500, for Steinfeld says, “I would not accept that”; and it likewise imposes on our experience and observation to believe that the almoner, upon the rejection of the offer, would without some valuable consideration or impelling motive yield to a demand of three times the offer. Steinfeld himself testified that it was not a gift. Neither is the finding that the fifteen per cent of Blaisdell’s property was transferred to Steinfeld for services supported by any substantial evidence-

Steinfeld probably believed he was stating the truth when he testified that the consideration for the transfer of the fifteen per cent of Blaisdell’s property was for services independent of loaning money and extending the time of payment of loans. But this was only his construction of the contract.. The facts that he and his witness Kingan detail, and other evidences, show that his conclusion' was erroneous. Where a transaction involves many propositions dependent upon each other, the lay mind might not unreasonably, for the purpose of an emergency such as exists in this case, undertake to segregate each proposition into separate contracts. However, the law will not permit this. The “services,” as pleaded in the answer and as testified to by Steinfeld, in the broad general sense in which it was used, would cover all aid or assistance one might be able to render another. It might mean a thousand things.

On his cross-examination Steinfeld was asked about the services that he had rendered to Blaisdell for the fifteen per cent of the latter’s property as follows: “Q. Now, what services did you render to Mr. Blaisdell in consideration of that fifteen per cent during the balance of that month of December? A. I don’t remember. Q. Did you perform any? A. Well, I can’t remember' just what all happened there. Q. Now, what services during the month of January, 1911, did you render Mr. Blaisdell in consideration of that fifteen per cent? A. Well, as I have said, it has been a continuous line of service; it is continuous work that I have given him along there. Q. Can you tell me anything that you did during the month of January, 1911? A. No, I can’t tell you anything except in a general way. Q. In the month of February? A. These letters here, these would indicate something which I have been doing. Q. What did you do outside of going to Yuma for Blaisdell in consideration of that fifteen per cent ? ” To the latter question Mr. Ives objected, and the objection was sustained by the court. Afterward Steinfeld did testify that he met a number of people in Tucson and Los Angeles and discussed with them Blaisdell’s business affairs. The time he gave to Blaisdell’s business did not interfere with the conducting of his own business. He made one trip to Yuma. The services rendered, therefore, were negligible and only such as a large lender would naturally bestow on the business enterprises of the borrower.

In discussing the evidence in the case, we have not referred to Blaisdell’s version of the transaction that resulted in the execution of the two instruments of January 19, 1911. While his testimony supports the complaint and is to the effect that Steinfeld exacted and demanded the transfer to him of fifteen per cent of his property, before making the loan and granting extension of time and agreeing to take up the $20,000 still owing the Merchants’ National Bank, we feel justified in relying upon the instruments executed, and the testimony in behalf of appellees in arriving at the conclusion that the January contract was usurious and void.

Under the Jariuary contract the lender was to be repaid every dollar that he had loaned or should advance, together with ten per cent per annum payable monthly. In addition thereto he was paid or given as a bonus fifteen per cent of certain of appellant’s property amounting in money to some $37,000. The twelve per cent allowed by law was exceeded. As heretofore stated, the appellant had repaid to appellee Albert Steinfeld all of his indebtedness, together with ten per cent interest thereon as agreed, before bringing this action.

The relief asked by appellant in his complaint under the agreements of July 2, 1910, and January 19, 1911, and all the instruments made and executed thereunder concerning the ten per cent commission and the fifteen per cent transfer of his property to Steinfeld, his trustees Harold Steinfeld and F. R. Pauli, is that they be declared null and void; that his stock and bonds be ordered returned to him, or their value, and for $2,137.50, being the amount of interest paid "Steinfeld upon the bonds held by him; that defendant Harold Steinfeld be ordered to redeed to him the fifteen per cent of lands; that F. R. Pauli be ordered to reassign to him the 150 shares of stock of the Yuma Electric and Water Company; and for general relief and costs.

The judgment of the trial court should have been that Steinfeld return "to appellant the stocks and bonds held by him as security for claim of commission under the July contract, as under the facts he had earned no commission and was entitled to no commission by virtue of that contract.

It is well settled at common law that where usurious interest has been paid by the borrower to the lender, as was done under the January contract, he may recover the excess over the rate the parties are authorized by law to contract for. In such case the payments are not deemed voluntary, nor is the debtor regarded as being in pari delicto in making them. 39 Cyc. 1030.

“Equitable relief is granted against usurious contracts, whether executory or executed, since from considerations of public policy the two parties are not regarded as standing in pari delicto. ... If the contract is executory, the borrowér may obtain the remedy of a surrender and cancellation of the securities which he has given for the usurious loan. If the contract is executed, he may recover 'back the usurious amount paid in excess of the sum actually borrowed, and legal interest thereon. ...” 2 Pomeroy’s Equity Jurisprudence, 3d ed., par. 937.

The note to Baum v. Thoms, 65 Am. St. Rep. 368 (150 Ind. 378, 50 N. E. 357), reads as follows: “Payment of usurious interest is regarded as made under moral duress and is therefore excepted from the operation of the ordinary rule that voluntarily paying an illegal claim estops the payor from maintaining an action to recover such payment. Note to Bexar Building etc. Assn. v. Robinson, 22 Am. St. Rep. 41. One who has paid more than the legal rate of interest may recover the excess in an action of assumpsit and is not limited to the remedy prescribed by the statute to prevent usury. But, to entitle the plaintiff to recover, he must show that he has done all that equity requires. Wheaton v. Hibbard, 20 Johns. [N. Y.] 290, 11 Am. Dec. 284; Musselman v. McElhenny, 23 Ind. 4, 85 Am. Dec. 445; monographic note to Davis v. Garr, 55 Am. Dec. 399, 400. Compare Ferguson v. Soden, 111 Mo. 208 [19 S. W. 727], 33 Am. St. Rep. 512.”

Equity will cancel deeds and encumbrances on real property if tainted with usury or given for a usurious consideration. Davisson v. Smith, 60 W. Va. 413, 55 S. E. 466, 470; Scott v. Fabacher, 176 Fed. 229, 100 C. C. A. 147.

The trial court should have given judgment to appellant for a return of all property paid over or given to Albert Steinfeld under the fifteen per cent contract of January 19, 1911, and directed Harold Steinfeld to deed back to appellant fifteen hundredths of the lands and premises deeded to him as trustee of Albert Steinfeld under said January contract, and ordered F. R. Pauli to transfer or reassign the 150 shares ■of the capital stock of the Yuma Electric and Water Company, and given appellant judgment for whatever interest that had been paid Steinfeld on bonds held by him.

Judgment is reversed and case remanded, with direction to enter judgment for appellant in accordance with this opinion.

FRANKLIN, C. J., and CUNNINGHAM, J., concur.

Application for rehearing denied.