Collins Iron Co. v. Burkam

| Mich. | Jun 3, 1862

Martin Ch. J.:

There was no error in the refusal of the Circuit Judge to charge as requested concerning the first transaction and its effect; nor in the charge as given. The bill of exchange was executed under the law of Ohio, and was payable in that State; and its validity will be determined by the law of that State. As usury does not avoid a contract there, but only affects the remedy, we can enforce the contract, but by do other remedies than those furnished by our own statute. Those provisions of the Ohio statute which provide for the recovery or appropriation of usury paid upon a contract, form no part of the contract, but relate solely to the remedy which will be afforded by her courts to the party from whom usury is taken. Under our law, even, the first transactions would be satisfied by the subsequent ones, and the usury which was part of the first, if not contained in the last as an integral part, would afford no ground for partial defense to an action upon the last contract, either by way of payrAent, or of reduction or limitation of the arnount for which judgment may be rendered. See Thurston v. Prentiss, 1 Mich 193; Engle v. Shurtz, Ibid. 150; Craig v. Butler, 9 Mich. 21; Smith v. Stoddard, [ante, p. 148].

But we think the Circuit Judge should have instructed the jury that the plaintiff was not entitled to recover the $245.34 which Was included in th.e bill, and claimed as and for statutory damages. It appears that the statute of Ohio allows damages at the rate of six per cent on all protested paper drawn on any person, <fcc., within the jurisdiction of the United States, and without that of Ohio; and if the Courts of that State would give such damages in an action upon the demand, it was competent for the parties in settling, to include it in the new instrument or obligation given. But the plaintiff had no right to demand damages upon paper drawn upon individuals within the State; and while we think such excess was not usury, or required as such, we think it was without consideration, and should have been deducted.

For this reason the judgment is reversed, and a new trial granted.

Manning and Campbell JJ. concurred. Chrtstiancy J. was absent when the case was decided.