21 Vt. 123 | Vt. | 1849
The opinion of the court was delivered by
That the notes executed by Sholes to Smith were usurious is unquestionable, and so it was conceded in the argument; and if the notes were paid by Sholes, he could undoubtedly maintain a suit to recover the excess of interest, so paid. This right of recovery, however, was a privilege, which he might assert, or waive, at his pleasure; and if he contracted with the plaintiff, for a valuable consideration, to pay the notes, such payment would not entitle the plaintiff to recover the excess of interest. For it by no means
Hence it became important, in the trial of the case, to ascertain under what circumstances the plaintiff paid the notes in question, — • the Sholes notes. If, by the plaintiff’s contract with Sholes for the purchase of the farm, there was an unqualified undertaking on the part of the plaintiff to pay the notes to Smith, in consideration of the convenance, we think it quite clear, that such payment would, in contemplation of law, be the payment of Sholes, he having furnished the plaintiff the means, or an equivalent, for paying the same ; and in that event Sholes would be the person entitled to recover the excess of interest. And such, the defendant insists, was the character of the contract.
If, however, the arrangement and agreement between the plaintiff and Sholes were such, that the plaintiff only undertook and assumed the payment of the note of $3000 and the note of $270, given for the first year’s interest, (and perhaps the testimony tended to prove such to have been the understanding of the parties, for it appears, that the payment of those two notes was all that was allowed the plaintiff towards the purchase money of the farm,) and that, as to the rest of the notes, he merely undertook to indemnify Sholes against the payment of them, and that, in pursuance of that arrangement, he contracted with Smith to pay him interest upon the note of $3000 for the remaining time it had to run, at the stipulated rate of nine per cent., and that he executed the two last notes for such interest, not having received any consideration from Sholes for the payment of the same, then said last two interest notes became and were substituted for the two corresponding notes made by Sholes, and were equally as much tainted with usury, as the notes for which they were substituted. Such, the plaintiff claims, was the true character of the transaction. And in the event of such being found to be the contract, we think the plaintiff might well sustain the present suit. These, however,