12 Wis. 453 | Wis. | 1860
By the Court,
The material facts upon which this appeal is to be determined, are these: Mosher was the
These papers, though executed in 1857, were dated back as of the 13th of May, 1856, the time when the first payment was received by Mosher's attorney. Divers payments were subsequently made, when this application was made by Chapin, setting forth that he had become the purchaser of the property after the decree was rendered; that payments had been made which reduced the amount then due to the sum of $1,612 74; and that the sheriff had advertised the premises for sale, and asking for an order for Mosher to show cause why he should not receive that amount and discharge the decree. On that order Mosher showed, as cause, the agreement and facts above set forth. And the point of dispute is, whether any effect can be given to that agreement, as far as Chapin’s rights are concerned, or whether he is entitled to have the property discharged on payment of the original decree with interest at the rate of seven per cent. The latter is the claim asserted by him, and the amount he admits to be due is computed upon that theory, whereas, if the agreement is carried out, a much larger amount is due. There can be no doubt that the agreement was made as claimed by Mosher. The weight of evidence derived from the affidavits fully establishes that fact; and it is altogether in accordance with the natural probabilities of the case. Eor it is incredible that Mosher should have emplojred an attorney to make a journey from Racine to Janesville to make this agreement, and then postpone the sale of this property for three or four years, allowing portions of it to be sold by Chapin, if he was to receive nothing but his original decree, with interest at seven per cent. The justice of the matter is, therefore, clearly on the side of Mosher: and the question is, whether there
It is claimed, first, that in order to make a valid agreement for more than seven per cent, interest, it must, under our statute, be in writing. And then it is said, that even if Chapin did make this verbal arrangement, yet, it not being-binding in law, there was no authority to apply any subsequent payments in pursuance of it, but they should be applied on the original decree, with interest at seven per cent It may be observed, that this objection does not extend to the solicitor’s fees, and the expense items agreed to be paid by Chapin. For there is no statute requiring such an agreement to be in writing. But even if there was, we are of the opinion that as to these items, and as to the compound interest agreed upon, the objection cannot prevail, for the reason that it appears that Chapin, acting through Ohase, as his agent, assented to the application of the first payment to those items. Gary states in his affidavit, that when he received the $1,694, on the 13th of May, 1856, he applied it in pursuance of the verbal agreement previously made. Af-terwards he wrote to Chapin desiring that the matter might be put in writing, &c., and Chapin replied that Ohase would call and arrange it. Ohase did call, and did assent to the application which had been made by Cary, for he received from Mosher a written agreement to extend the time, reciting that these items of expense, and the compound interest, had been paid, and he himself executed a written agreement to pay twelve per cent, interest on the balance due on the decree, which balance was struck after applying the first payment as just stated, and then on the decree, as far it would go. How it seems to us clear that Ohase was the agent of Chapin in absenting to that application. Chapin, by his letter to Gary, had expressly appointed him for that purpose, and Chase stated that he came at the request of Chapin. This application of the first payment is, then, as though Chapin himself had assented to it. And, therefore, even if this part of the agreement could not have been enforced while execu-tory, yet if the party himself voluntarily made payments, and applied them upon it, there is no reason why his action
Neither do we think the agreement to compound the interest upon some of the previous installments of interest, as to which Ohase had been in default, makes the contract usurious. It is true that compound interest is not enforceable as a general rule. Rut this has been placed upon grounds of policy, and because it was hard and oppressive, and not strictly upon the ground of its being usury. And it cannot, in truth, be said to be so. Eor it is capable of mathematical demonstration, that by compounding the interest, no more is recovered than the exact rate allowed by law for the forbearance of a debt. This whole subject is very fully and ably discussed in Camp vs. Bates, 11 Conn., 487, and it seems impossible to deny the conclusion of the court that such a transaction is not usurious. See also Meeker vs. Hill and others, 23 Conn., 574.
Having come to this conclusion, that the agreement was not usurious, it is unnecessary to examine whether it disclosed a consideration separate and distinct from that of for
The only further point to be noticed is, as to the effect of the written agreement made by Ohase to pay twelve per cent, on the balance of the decree. It was said that this bound Chase only, and could not affect the land which Cha-pin had bought. This would undoubtedly be so except for the peculiar facts of this case. But upon those facts we think Chapin is estopped, in equity, from claiming that an agreement made by Chase, even in Ms own name only, was not valid and effectual to accomplish the verbal agreement which he had previously made. Chapin told Mosher, when he first came to him, that he was acting to help Chase, and was’ acting in concert with Chase. When subsequently written to, to put the agreement in such shape as to be binding in law, he replied that Chase would come and arrange it. And Mosher and his attorney had a right, from all this, to assume that Chase was the party beneficially interested, and that for that reason Chapin had sent him as the proper person to carry out the arrangement. When they accordingly made the agreement with him, we think Chapin is estopped from setting up that he was incompetent to make it effectual. They dealt with Chase as competent for that purpose, upon Chapin’s statement, and upon his direct reference to Chase, when applied to to act himself. It is then against
The order appealed Rom is affirmed, with costs.