83 N.J. Eq. 636 | N.J. | 1914
The opinion of the court was delivered by
This was an action to foreclose a mortgage which, on its face, was for $1,300.
The defence was usury and it prevailed in the court of chancery where a decree was entered for the amount due after deducting the statutory penalty for usury.
The facts are as follows: Max Lehman, one of the defendants, desired to borrow' money. He learned that he could get it from the Jackson Realty Company, the complainant. He consulted Simon Lubash at his office. Lubash was, at that time, and for some years afterwards, the secretary and one of the active men of the company, and had the company’s books at his office.
Shortly thereafter, no further payments being made by Lehman, and he having refused to pay the balance of the bonus, the bill of foreclosure was filed.
We are of the'opinion that the vice-chancellor properly charged the complainant company with the usurious moneys received by Lubash, its secretary.
But we think that the conclusion is irresistible that the company had knowledge of the usurious agreements made by its secretary, and that he was authorized to make them.
The rule is that the authority of an agent to do certain acts in behalf of his principal may be inferred from the continuance of the acts themselves over such a period of time, and the doing of them in such a manner, that the principal would naturally have become cognizant of them and would have forbidden them if unauthorized. Dierkes v. Hauxhurst Land Co., 80 N. J. Law 369.
During the several years covered by this transaction, and until near the end when Goldram appeared, the complainant corporation was represented wholly and solely by Lubash. It was with him that the borrower exclusively dealt. In fact, so far as the borrower is concerned, Lubash typified the corporation. He was the custodian of its books. Lehman made payment of the four installments of principal and all payments of interest to him. It is undisputed that lie made all of the usurious payments to him. It is admitted that the corporation received regularly the four installments of principal and the payments of interest during the entire term. Lehman, assumed and testified that in each instance he was informed by Lubash that ihe company insisted upon these bonuses before it would make the loan, and later, before it would modify its terms. The company does not deny that it authorized Lubash to make these corrupt agreements. It does not deny that it received these bonus moneys. In every instance the company did the very thing that Lubash agreed they would do when he accepted the money. It had weekly meetings of its board of directors, but for a period of two years it did not foreclose or in any way proceed against Lehman, .although he was, if the arrangements made by Lubash were to be disregarded, during this entire two years in continual default to the corporation. After Lehman made the second payment’ of bonus (the first $65 payment) he was always in default so far as the terms of
This conclusion is strongly fortified when we consider the attitude of its president, Goldram, with reference to Lehman’s last proposition for an extension. In view of the previous dealings between Lehman and the company, and what we find to have been the facts, we believe that Lehman spoke the truth with reference to his dealings with Goldram, and this notwithstanding the latter’s partial denial. Goldram’s disinclination to receive the check until he was assured that it represented part of the principal and interest, and not. bonus money, and his acceptance of the $35 in cash after he knew, as we find, that it was for a part of the bonus, the balance of which was promised later, shows, we think, that Lubash’s usurious exactions were in line with the settled policy of the company.
The decree will be affirmed, with costs.
For affirmance — The Chibe-Justice, Garrison, Swayze, Teenckard, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Heppenheimer, Williams — 13.
For reversal — Hone.