Equitable Mortg. Co. v. Craft

58 F. 613 | U.S. Circuit Court for the Northern District of Georgia | 1893

NEWMAN; District Judge,

(after stating the facts.) Having become satisfied that the contract in this case is not usurious, it is unnecessary to consider the other exceptions to the report of the toaster, and other questions discussed in this case. The fact that the money was advanced to the defendant by the Atlanta Trust & Banking Company before the papers were received by the Equitable Mortgage Company, and the fact that the bonds to reconvey were signed by W. A. Hemphill, as attorney in fact for the Equitable ;Mortgage Company, is not sufficient, in my opinion, to justify , the !pourt in determining that the Atlanta Trust & Banking Company was the agent of the Equitable Mortgage Company. The fact that Hemphill was the president of the Atlanta Trust & Banking Company, it seems to me, ought not to affect the question, said trust and banking company being engaged in negotiating loans through complainant and others; and, it being desirable, in order to facilitate the transaction of the business, that there should be some one to execute such papers, it it; entirely natural that he should be selected, and the court would not from that imply an agency in the trust and banking- company, in the face of express testimony to the contrary. The fact of the advance of the money to Craft, the defendant, by the -Atlanta Trust & Banking Company, before the loan was dually accepted by the Equitable Mortgage Company, is shown to have been to expedite the transaction of the business of negotiating loans, and the Equitable Mortgage Company had the right to accept or reject it thereafter. If the trust and banking company saw proper to thus advance the money to the defendant on paper executed by him to the Equitable Mortgage Company, taking their chances on its acceptance by the latter, it is not a matter that-the defendant should be allowed to set up as a ground for claiming the contract to be usurious. It is not claimed that the Equitable Mortgage Company received more than legal interest. The only contention is that the facts in evidence make the Atlanta Trust, & Banking Company its agent, and therefore the commissions received by said trust and banking company were, in law, received by the Equitable .Mortgage Company. The court is not prepared to so hold.

In the case of Merck v. American, etc., Co., 79 Ga. 213, 7 S. E. 265, the supreme court of Georgia, in a case very much like this, construed the statutes of Georgia on the subject of usury, and the reasoning there covers the facts in this case. It is claimed by counsel for the defendant that in the two matters which have been referred to above — the president of the Atlanta Trust & Banking Company acting as attorney in fact-for complainant, and the advance of the money before the acceptance of the loan by complainant — distinguishes this case from the Merck Case. I do not think so. The Atlanta Trust & Banking Company seems to have been doing an independent business in Atlanta in banking and in negotiating loans, and would, of course, ado pi, such methods of transacting its business as to facilitate the same; and that was all these two matters amounted to. It is insufficient, as has been stated, to raise the implication of agency in the face of direct testimony to the contrary. In the case of Trust Co. v. Fowler, 141 U. S. 384, 12 Sup. Ct. 1, the agency was express. The person negotiating the loan had been expressly made the agent' of the lender in the state where the loan was made. Consequently the facts in that case differ materially from the facts in this case, and there was nothing in that case inconsistent with ihe views above expressed by the court that the transaction at bar is not usurious.

The conclusión is that the contract is not usurious, and that the special master erred in so finding. Complainant’s exception on that ground will he sustained, and a decree rendered in favor of the complainant for the full amount of its debt, with interest thereon.