106 Ky. 135 | Ky. Ct. App. | 1899
delivered the opinion car the court.
The appellant, J. B. Payne, brought this action seeking to recover of appellee the sum of $375, alleged to have been paid by him to appellee, in excess of the principal and legal interest, on a debt due appellee for loaned money. The issue presented is one of law rather than of fact. The facts as proven, and about which there is scarcely a dispute, are these: In 1891, Buckner & Cummins, a firm of brokers in Louisville, had a notice in one of the papers that they loaned money at seven per cent. Ap
The question then presented is: Can appellant recover
It is clear from the proof that the brokers, Buckner & Cummins, as well as the attorney represented the appellee in the negotiations for and consummation of the loan. They were her agents to see that the security offered was ample, that the title was perfect, and that the mortgage was correctly drawn and bound the property. Representing appellee as they did, they could not also at the same time represent appellant.
There was no obligation resting on appellant to pay the agents of appellee, but this obligation rested on appellee herself.
The proof shows that appellee must have known that the borrowers of her money were paying her agents for their services, for she did not pay them.
In the case of Fowler v. Equitable Trust Co., 141 U. S., 384, [12 Sup. Ct., 1], the Supreme Court, in a case very similar to this one, said, by Justice Harlan: “We, therefore, hold that the exaction by the trust company’s agent, pursuant to his general arrangement with it, of commissions over and above the fen per cent, interest stipulated to be paid by the borrower, rendered this loan usorious.”
In the case of Banks v. Flint, 54 Ark., 40, [14 S. W., 769], a case very similar to this one, the court said: “To sustain the plea of usury, it must appear that excessive interest was paid to the lender, or that a bonus or commission was paid to the agent of the lender with his knowledge, or under circumstances from which his knowledge will be presumed, which commission, when added to the interest paid or to be paid the lender, would exceed the lawful rate. . . .” Concluding, the court says: “But it also knew that the services had been ren
In the case of Fitzgerald, Trustee, v. Maupin’s Adm’r, reported 5 Ky. Law Rep., 242, decided by this court September 15, 1883, the facts appeared that Yaupin executed his note for $3,500 and actually received only $2,956.50, together with $24 paid for insurance, the difference being $519.50. Of this sum of $519.50, the sum of $117.50 was for commissions to Roe & Lyon, brokers, who negotiated the loan, and the balance was discount or interest paid* in advance. The court held the transaction usurious as to the whole sum of $519.50, and said: “The decedent having paid the interest up to his death, the proper judgment for the court below to render was in giving to the appellant interest at six per cent, on the amount of money received by the appellee’s intestate. The court will not stop to inquire whether Roe & Lyon were the agents of the one party or the1 other, as the statement of the case is conclusive of the object in view by the party making the loan.”
The reasoning of these cases, and of others that might be cited, seems to be conclusive o'f the question. It is plain to us that this transáction as made was but a device intended^to evade the usury laws. The brokers notified the public that they would lend money at seven per cent, interest. This is the exact amount charged appellant, and for the excess over six per cent. — $375—appellant is entitled to recover.
Judgment reversed, and cause remanded, with’ directions to render judgment for appellant, and for further proceedings consistent herewith.