83 Ark. 31 | Ark. | 1907
(after stating the facts.) The court erred in its findings and decree. As we view the evidence, the charge of one and one-half per cent, commissions was indeed a charge or commission made by the bank against the Mill Company for handling the latter’s accounts and invoices -in the manner indicated in the statement of facts. The proof tends to show •that this agreement to pay commission for the trouble the bank bad in handling and collecting the Mill Company’s accounts was a separate and distinct charge from the amount agreed to be paid for the 'advancement of money by appellant. It was not a charge for the use or forbearance of money. To constitute usury, there must be an agreement on the part of the lender to receive and on the part of the borrower to give for the use of money a greater rate of interest than ten per cent. Scruggs v. Scottish Mortgage Co., 54 Ark. 566.
The appellee 'having set up usury, the burden was upon him to show it. Holt v. Kirby, 57 Ark. 251.
We are of the opinion that the evidence fails to show a corrupt agreement for usury. The evidence of any shift or device to cover usury is wanting.
The evidence to establish usurious contracts should be clear and satisfactory; for, when shown, they forfeit the whole debt, principal as well as interest. “Usury will not be inferred where from the circumstances the opposite conclusion can be reasonably and fairly reached.” First Natl. Bank v. Waddell, 74 Ark. 241; Leonhard v. Flood, 68 Ark. 162.
If the charge of one and one-half per cent, here was commissions, as the court found, and was for the service and trouble of keeping the account for the Mill Company, as the uncontroverted proof tends to show, then it was not a usurious charge, although it was in addition to a charge of ten per cent, which appellant had heretofore exacted of the Mill Company for the use of money advanced it. The decree is reversed and remanded with directions to the chancery court to enter a decree allowing the claim of the appellant, and for other proceedings not inconsistent with this opinion.
