97 Ga. 804 | Ga. | 1896
This was an action for land, in which the plaintiff below, Mrs. Camak, relied for a recovery upon a deed to herself from the defendant, Mrs. McLean. The latter set up as a defense, that this deed was given to secure the payment of a promissory-note which was usurious, and that therefore the deed was void because tainted with usury. The material facts, as shown by the evidence, are as follows:
Mrs. Camak made a loan of money to Mrs. McLean, who thereupon executed and delivered the note and deed in question. The transaction was not conducted by Mrs. Camak in person, but through Mr. Thos. E. Watson, her. agent. The note bore interest at the rate of 8 per cent. per arniwm. The agent charged Mrs. McLean a commission for making the loan, which she paid to him out of the proceeds thereof. As to the scope and character of his agency, Mr. Watson testified: “I looked after her business in this county, and she requested me to make investments for her out of money collected from her father’s estate. I am not sure whether I consulted Mrs. Camak about making this particular loan or not. . . Mrs. Camak did not receive any” of the commission charged for making the loan, “nor did I notify her that I charged a commission, and she had no notice of it, so far as I know. She did not pay me anything for making the loan, nor did she agree to pay anything. . . I had a good deal of money to collect for Mrs. Camak and her sister, Mrs. DuBose, which was due them as heirs of Judge Wellborn, and I charged them for collections I made. I am not certain I had enough of Mrs. Camak’s money to pay Mrs. McLean the full amount of loan at time it was made; if not, I soon collected it for her. I am not certain that I notified Mrs. Camak at the time that I had made this loan; but if not, I informed her soon after-
The defendant introduced no evidence whatever tending to show that Mrs. Camak ever authorized her agent to receive commissions on loans negotiated in her behalf, or knew that it was his custom to charge commissions, or had ever shared in the same, or otherwise ratified the acts of her agent in thus transacting her business.
“The general rule is now well settled, that commissions paid or agreed to be paid by the borrower to an agent of the lender for his sendees in procuring or advising the loan,
In the present case, it is to be observed that the note and deed are apparently perfectly valid, as they contain nothing to indicate that a higher rate of interest than 8 per cent, was charged. Only upon the theory that these two instruments do not set forth the real contract, can the loan be attacked as usurious. The defendant contends that the •contract actually entered into embraced the stipulation that the agent was to receive a commission, and that the whole of the principal sum which the agent purported to loan was not to be received by the borrower. If the agent was actually empowered or instructed to enter into such an arrangement, the contention of the defendant would unquestionably be sound. But-if the lender in fact parted with the entire principal sum, and was not concerned in and received no benefit under the collateral agreement between the agent and the borrower whereby the former reserved to himself a commission, it would be a serious matter to declare inoperative and void the deed thus honestly and in good faith taken by the lender. If the lender had no knowledge of this collateral agreement and received no part of the commission, but, when the agent in effect reported that he had made a loan of the entire principal sum at a legal rate, simply ratified this apparently legal contract, she would be both legally and eqrdtably entitled to enforce the contract as written; for the borrower would be equally chargeable with the agent in concealing the true state of affairs and placing the lender in this situation.
It is a homely axiom that “it takes two to make a contract.” Therefore, unless a borrower shows affirmatively
We do not mean to say the borrower must show that the lender expressly, in so many words, authorized his agent, before the transaction was consummated, to exact a commission. If the lender be shown to have had actual knowledge of the agent’s intention to charge a commission, and before accepting or ratifying the contract of loan became aware of the fact that a commission had been reserved, the-law would imply assent to the agent’s acts from the principal’s silent acquiescence. What we wish to be under
The same question is also raised by an assignment of error upon the refusal of the court to give in charge the following written request: “If the agent of the lender exact a bonus or commission, and the lender, Mrs. Camak, had notice thereof, or if the facts were such as would im
From the language in which this request was couched, and especially in view of the peculiar legal significance of some of the words employed, we understand that counsel attempted to invoke in the defendant’s behalf the doctrine of constructive notice. This becomes the more apparent in view of the fact that counsel complains of the above quoted charge on the ground that it restricted the jury to a consideration of “actual” notice, and in his written argument before this court, insists that “notice to the agent is notice to the principal.” If such was the purpose of the request, it was not very happily nor accurately worded. For instance, “as to what facts would impute notice” is not, as this request undertakes to lay down,-“a question for the jury entirely,” but on the contrary, “constructive notice is a question of law,” and a matter for determination by the court. 16 Am. & Eng. Enc. of Law, 792. That is to say, the law imputes notice upon a given state of facts; and it lies within the province of the jury simply to determine whether or not such facts exist, and not to say whether-, as matter of law, they constitute constructive notice.
But even if this request correctly stated the law as to constructive notice, we think it was very properly refused, for the doctrine of constructive notice has no application whatever to the facts of this case. Otherwise, it would be an entirely useless formality to inquire whether the plaintiff really had knowledge of the fact that her agent exacted a commission; for it is not disputed that he did, and under the doctrine of constructive notice his knowledge of the fact would be legal notice to her. "We have already seen that the purpose of showing knowledge on the part of the
If, however, counsel for the defendant intended to embody in his request the law as to implied notice, we still think the request was properly refused; for although the qiiestion of implied notice was more or less involved in this case, it was sufficiently covered by the charge given, and there was no evidence upon which to predicate the request to charge. Certainly, the plaintiff was not shown to have had knowledge of facts or circumstances which “would put a reasonable person on notice or inquiry,” as to what occurred between Mr. Watson and Mrs. McLean with reference to the negotiation of this loan. The court expressly instructed the jury that “in determining whether or not Mrs. Camak had notice of the fact that Mr. Watson charged commission for making this loan, the jury can look to all the facts and circumstances of the transaction”; and under the evidence submitted, we think this instruction was certainly as favorable to the defendant as she had any right to expect, and it went quite as far as the court was warranted to go in charging upon this branch of the case.
The court was right in restricting the jury to a consideration of actual notice. It was absolutely essential to the maintenance of the defense that the defendant should show
The charge of the court left the jury entirely free to find that the plaintiff was chargeable either with express or with implied notice. We cannot say that their finding that she was chargeable with neither was erroneous, under the facts presented for their consideration. The only circumstance which, in our opinion, could possibly count against the plaintiff was, that her agent testified: “She did not pay me anything for making the loan, nor did she agree to pay anything.” This fact is capable of explanation, however, and is not inconsistent with the idea that it was not her purpose to require him to look to the borrower for compensation, or that she did not expect to pay him anything herself for his services in negotiating the loan. The evidence shows she placed her entire business in McDuffie county in
Judgment affirmed.