64 N.Y.S. 809 | N.Y. App. Div. | 1900
Lead Opinion
The evidence in this case tends to show that in October. 1894, the defendant Charles L. Sherrill was engaged in the erection of an apartment house in the city of Buffalo, N. Y., and, being without sufficient funds to complete the same, he applied to Spencer S. Kingsley, a real estate agent and loan broker in the city of Buffalo, to procure a loan for him of $50,000, to be secured by a mortgage upon the premises. Kingsley, being unable to procure such loan, introduced the defendant to one George H. Sickels, also a real estate agent and loan broker, and thereupon such negotiations were had between them that an oral Agreement was entered into by which it was agreed by the defendant that in case said Sickels obtained such loan he would receive a commission of $10,000: but out of said sum he agreed to pay to the broker Kingsley liis commission, and to his-brother,. Frank E. Sickels, an attorney, all charges for his legal services in preparing the papers, examining the title, and attending to the discharge of certain liens upon the premises which then amounted to about $20,000. In March, 1894, the broker Sickels had been informed by one Joshua S. Bliss, the husband of the plaintiff, that she had or soon would have $50,000 or $60,000 for investment, and requested him, in case he had any applications for loans, to inform him of that fact. Soon after Sickels and the defendant entered into the above agreement Sickels informed the plaintiff’s husband that he had an application by the defendant Sherrill for a loan of $50,000, to be secured by a mortgage upon the premises in question, but did not inform him of the agreement which he had entered into with the defendant by which he was to receive $10,000 for his commission in case such loan was made. Thereupon the broker Sickels, the defendant and Joshua S. Bliss, the plaintiff’s husband, together made an examination of the building then in pro-cess of construction, and • of the plans, drawings, photographs and prospectus of the same, all of which were delivered to Joshua S. Bliss, were by him taken to his home in Towanda, N. Y., and submitted to the plaintiff, when for the first time she was informed of the defendant’s application, She and her husband consulted together as to the advisability of making the loan, and concluded not to do so. Soon thereafter the plaintiff’s husband called -upon Sickels and informed him. in substance, that the plain-tiff had decided not to make the loan, and stated the reasons for such decision, which were largely personal to himself. Sickels then stated to J oshua S. Bliss that if he (Bliss) would advise his wife to make the loan and she consented to do so,.he would pay him (Bliss) personally the sum of $5,000, being one-half of his commissions or bonus which the defendant had agreed to pay. The plain-tiff’s husband assented to the proposition; advised his wife to make-tlie loan, but did not inform her of the Agreement he bad made with Sickels, or which Sickels had made with the defendant, and she had no knowledge of the same. She, however, acted upon her husband’s advice, and consented to make the loan to the defendant. Thereupon, and about November 1, 1894, the plaintiff, through her husband as her agent, entered into a written contract with the defendant, which provided, among other things, that the plaintiff would loan to the defendant the sum of $50,000, $30,000 to be paid at once and the balance, $20,000, to be placed on deposit in a bank in the city of Buffalo as a guaranty that said loan would, be completed, which balance was to be paid to the defendant, as follows: $5,000 when the roof of the building was on; $5,000 when a certain plumbing contract was performed and certain other work was done upon the building, and the remaining $10,000 when the building was fully completed; interest to be computed on such installments only as advanced; the whole sum to be secured by a mortgage upon the premises. On the 1st day of No-vember, 1894, pursuant to the contract exeouted by the plaintiff and the defendant, the plaintiff advanced the sum of $30,000 to the
Dissenting Opinion
(dissenting) : The “ bonus ” exacted as a condition of the loan in question was the unconscionable sum of $10,000, which was about one-third of the amount actually loaned. By an arrangement entered into between the lender’s husband and the negotiator of the loan, one-half of this sum was paid over to the former and by him transferred to his wife’s bank account in reduction, as it was claimed, of a certain indebtedness owing by him to her. This arrangement was certainly a most ingenious, one, bub it requires something of a strain upon human credulity to believe that it was entered into and fully accomplished without the knowledge of the plaintiff. Upon the former appeal we held, that in transactions attending the plaintiffs loan the husband was in fact the principal, or, in other words, the alter ego of the wife, and that, under the circumstances of the case, the latter could not repose upon her ignorance and thereby defeat the principle of ratification. (24 App. Div. 280.) • Upon the second trial, the evidence, so far as it bore upon this feature of the case, was practically the same as upon the first, and consequently It seems tome that consistency, if nothing else, requires that we should adhere to and follow the former unanimous decision of this court, which, until reversed by a higher tribunal. is the law of the case. It is proper to addj however, that my conviction that the plaintiff’s judgment ought not to be permitted to stand is not based entirely upon the principle of stare decisis, for I think now, as I did when the cáse was here before, that the evidehce‘establishes clearly and satisfactorily a bald and unconscionable attempt upon the part of the plaintiff, through the agency of ner husband, to evade the consequences of an usurious loan.