33 Ky. 183 | Ky. Ct. App. | 1835
delivered the Opinion of the Court.
This was an action of assumpsit to recover back from the administrator, with the will annexed, of Joseph Walker, the amount of usury alleged to have been paid to the Testator, in his life time, upon a loan of Bank notes.
The declaration alleged, in substance, that the plaintiff had borrowed from Walker two hundred dollars, in notes of the Bank of the Commonwealth of Kentucky, then greatly depreciated, to be repaid in an equal number of dollars; for the payment of which sum, in six months, with interest from the date, he executed his note to Walker, with Samuel Hahn as his security; and that additional interest, making in all ten per cent, upon the amount of the note, was secured by other notes executed with the same security. That some time after the notes became due, he fully discharged and paid the whole amount thereof, viz: two hundred and forty three dollars, of which one hundred and thirtyfive dollars is alleged to be usurious. “Whereby, and by force of the statute, &c. action hath accrued to the plaintiff against the defendant, for the said sum of one hundred' and thirtyfive dollars, with interest thereon — whereof the defendant had notice, &c. And the said Testator, in his life time, and the defendant, since his death, promised and assumed upon themselves, to pay the said sum of one hundred and thirty-five dollars and interest— nevertheless, &c.
A trial was had upon the general issue, and a plea of the statute of limitation, and it appeared, upon the plaintiff’s evidence, that the payment was made to Walker, not by the plaintiff, but' by Samuel Hahn, the 'security,—
The facts, both as they are stated in the declaration and as they appear in the evidence, make out a case of usury; but there is, in our opinion, a material variance between the allegations and the proof. Admitting that the receipt by Walker, of the U. S. Bank note and the assigned notes of individuals, in discharge of the notes executed to him by the Hahns, might be proper to support the general allegation of payment made, in the declaration, and" that the law would imply from such a payment, the liability to pay back the nominal usury in money (points which w.e do not now mean to decide,) still the liability and cause of action would accrue to the obligor who had made the payment, according to the terms of his undertaking, and not to the co-obligor, though he be the principal, unless the payment were made at the request of the latter, and substantially as his agent. The subsequent reimbursement of the security by the principal, may entitle him to receive the amount to be refunded by the usurer, but cannot transfer to him the right of suing for it at law, in his own name. Suppose he had never reimbursed the security, could he have sued to recover back the usury, paid by the security? We think not.
The evidence in this case, does not authorize the inference that Samuel Hahn discharged the debt to Walker, as the agent of the plaintiff, with his property, at his request, or for his exclusive benefit; but the contrary is rather to be inferred from the facts. We are of opinion, therefore, that the cause of action did not ac