17 Wend. 280 | N.Y. Sup. Ct. | 1837
By the Court,
The question presented by this bill of exceptions is by no means free from difficulty. There are several cases which .clearly sanctioned the contract, looking at its face, so far as the mere loan of the sheep is in question. Stopping here, Spencer v. Tilden (5 Cowen, 144), is a stronger case in favor of the contract. There the contract was to double cows in four years, the whole to be at the risk of the borrower, which was admitted' by the lender to be at the time as good as 25 per cent interest. Holmes v. Wetmore (id. 149, note), held the same as to doubling sheep in three years (Cummings v. Williams, 4 Wendell, 679), repeated the rule as to doubling cows in four years, though the case, it was agreed, presented a greater certainty as to profit than Spencer v. Tilden. The Vermont statute of usury excepts from its operation this customary dealing among farmers; but even without such an exception, it seems, their courts would feel [282] themselves warranted in denying the application of the statute (Whipple v. Powers, 7 Verm. R. 457).
In the case at bar, the sheep were loaned for one jrear certain; and so from year to year, so long as the lender chose, with a stipulation to return the same number, of the same quality and age, as nearly as possible, on one year’s notice. So far there could be no chance of profit, except the rise of value in market; and there might be considerable loss from the depreciation in value. The direct and certain income lay in the fifty cents per head, which is conceded to have been more than seven per cent, on the cash value at the time of the loan; and this is the only feature by which the case can be distinguished from those already decided. With this, we must connect the fact offered to be proved, that wool from sheep, like those in question, was worth §1 per pound, and that a pound of wool was the accustomed rate of compensation for the use of a sheep for one year (see Ord on Usury, 58, 9).
It appears to me that there is a series of cases in point, with regard to like. dealings in other property, against this transaction being considered usurious per se. Here are, doubtless, several ingredients tending to the
Mr. Comyn remarks, that to make such cases usurious, the exact value of the stock to be replaced should be estimated by the parties, so that all is certain and nothing contingent (Comyn on Usury, 114). In the principal case, had the contract been to restore sheep, not only of the same number, quality and age but also of the same value, it would clearly have been
Now, it is certainly not to be denied, that in any of the cases cited, had the transaction been conducte.d with the view to cover up a usurious loan, all would have been void, and that is agreed from Tate v. Wellings down to Madock v. Rumdall; and it is somewhat surprising, that it was not put to the jury on that question, in Pike v. Ledwell. But we can not pronounce on the usury as an inference of law, till we see that an equal value is secured as principal, together with the usurious interest, or some usurious advantage in addition. No doubt, that in any of the cases decided by this court, had the jury found the doubling of the cattle or sheep to have been a mere shift for evading the statute, those contracts would have been adjudged void; and a finding of the jury seems to me to be the true way of settling such questions.
The court below held that the giving of fifty cents per annum, under this contract, for a sheep worth less than the cash principal of that sum [285] avoided the contract, independent of all questions as to present value or depreciation. The fall in market might have led the plaintiff to exercise his right of election unfavorable for the defendants. Whereas, there could be no ground for unreasonable delay, if sheep had continued as valuable as the plaintiff proposed to show they were at the time. Again, they might have suddenly risen in the market,,so that the rent should have been more; and yet, before the year’s notice could call them in, have fallen to very little. This whole arrangement may well be regarded, like the case of the final settlement certificates, or the salt, as a mere bargain of hazard, or the jury might well have pronounced it a fraud on the statute for aught I know. I think their opinion should have been taken, and that therefore the judgment should be. reversed, and a venire de novo be issued from the court below, the costs to abide the event.