110 Ala. 559 | Ala. | 1895
This suit is prosecuted by Nicklin against McGarry et al. on a promissory note. The note
On the trial below, the defendants pleaded that this is a Tennessee 'contract, and that it was void under the laws of that State for that it stipulates for the payment of a greater rate of interest than is allowed by'those laws ; and in support of the plea certain sections of the Code of that State and decisions upon them by its court of last resort were adduced in evidence. The statutes thus relied on and proved are the following :
“§ 2700. Interest is the compensation which may be ■demanded by the lender from the borrower, or the creditor from the debtor, for the use of money.
Ҥ 2701. The amount of said compensation shall be at the rate of six dollars for the use of one hundred dollars for one year; and every excess over that rate is usury.
Ҥ 5622. No person shall receive by way of compensation for the use of money more than at the rate of six dollars for the use of one hundred dollars for one year.
“§ 5623. The punishment of this offense shall be a fine, in no case less than ten dollars, nor more than the amount of the usury received, to be ascertained by the jury. In case the defendant plead guiluy to the charge, or judgment go against him on a plea in abatement, a jury shall be sworn to ascertain the amount of usury received.”
And it was further shown by another section of the Code that the word “person” used in section 5622 includes a corporation. The adjudged cases put in evidence were Thompson v. Collins, Kellogg v. Kirby, as reported in 2 Head, 441, and Isler, Admr. v. Brunson, as reported in 6 Humph. 277. In these cases, it is held by the Supreme Court of Tennessee that under the statutes we have quoted a contract fór the payment of money in that State which contains a stipulation for the payment of interest at a greater rate than six dollars for one hundred dollars — or six per cent — is illegal and void, and will not be enforced in the courts. The note sued on here contains an express stipulation for the payment of eight per cent, interest on the debt evidenced by it. We have seen that not only was it to be paid in Tennessee, but also that it was made there. The law of that State
The principle invoked by plaintiff that where a contract for the payment of money is executed in one State or country, and is by its terms to be performed in another, the parties may therein stipulate for any rate of interest allowed by the laws of either such State or country (Hunt’s Extr. v. Hall, 37 Ala. 702; Cubbedge, Hazlehurst & Co. v. Napier, 62 Ala. 518) can have no application here, since this contract was both executed and to be performed in the State of Tennessee.
The trial below was without a jury. The district judge on the evidence found for the plaintiff, and judgment was entered up accordingly. There was exception taken to this finding a,nd judgment, presenting the case for trial de novo on the facts. — Acts 1890-91, pp. 605 et seq., § 8. The trial judge erred in applying the law to the undisputed facts ; and we are constrained to reverse the judgment of the district court. A judgment will be here entered for the defendants.
Reversed and rendered.