5 Cow. 144 | N.Y. Sup. Ct. | 1825
The contract was not usurious ; though the plaintiff was a very hard and unconscionable creditor. The interest and principal were both put at hazard to a considerable extent. It was uncertain in 1819, what would be the value of the cows in 1823. If the hazard be slight, and merely colorable, it will not take the case out of the statute; but I do not consider it so in this case. Here was no negotiation for a loan of money.
Judgment for the plaintiff.
May Term, 1825.
Holmes against Wetmore.
On certiorari to a justice’s court. Wetmore sued Holmes in the Court below, on the following agreement:
“ Whitestown, August 26th, 1819. Ebenezer Holmes received of Ezra Wetmore ten ewe sheep, for which X promise to deliver twenty sheep, of as good a quality ; three years from the date.
Ebenezer Holmes.”
Plea, the general issue.
On the trial, sheep, in August, 1822, were proved to be worth one dollar. The Justice gave judgment for the plaintiff, for 20 dollars damages and the costs.
Judgment affirmed.
I-Iamlin v. Fitch. (Kirb. Conn. Rep. 260.)
Action on a note dated Feb. 28, 1785, by which the defendant promised to pay the plaintiff $16,839, in final settlement certificates, within six months from the date. On issue, the jury found that the note was given for the loan of this $16,839 in final settlement certificates; and that it was corruptly agreed between the parties that the defendant should give the plaintiff $1000 in lawful money, for the loan, beyond the legal interest, for the six months; and that the -note was given in pursuance of this agreement; and therefore void. This finding was in the language of the issue.
On motion for judgment for the plaintiff; non obstante, &c.
The Court, (Judges Dyer and Pitkin dissenting,) gave judgment for the plaintiff according to the motion; saying, “ To bring a contract within the statute, and the mischief it was made to prevent, it must be clearly for the re-payment of a greater value than the amount of the loan, with an advance thereon, at the rate of six per cent, per amium. That it be of a greater quantity, though of the samo kind of article, is not sufficient. If the article bo of a fluctuating value, and from such change or diminution of its value, as from its nature or the course of trade, it is subject to, it may not, at the time of re-pavment, be worth more, or so much. A loan of one hundred bushels of salt, for example, in the year 1783, when it was at twelve shillings, to repay double the quantity, at the end of one year, when it might have been worth but four shillings, would not come within the statute, be the price what it might at the year’s end. Nor would it make a difference, if it was to repay 106 bushels of salt, and a sum of money besides, provided both of them might not amount to more than the value of the loan, and six per cent, interest thereon.
“ Willi regard to the final settlement certificates, said to bo loaned in this case ; it is matter of public notoriety, that they were, at the time of the con
The two dissenting judges recited the Connecticut statute of usury; which, as to the point decided, is the same as tho statute of this state.
The case of Morrisset v. King, (2 Burr. 821,) seems to go upon much the same principle ; and see Shipwith v. Gibson Jefferson, (4 Hen. & Munf Rep. 490.)
This doctrine, which converts damages apparently stipulated, or fixed by the parties, into a penalty, came from the civil law through the Court of Chancery; and has at length obtained a firm hold in tho Courts of common law. It is obvious, that, in order to enforce it, Courts must disregard the particular expressions of the parties ; for the moment wo agree, that a party may, by calling a real penalty liquidated damages, or throwing it into the form of an alternative in a contract, or substituting its payment for some specified default, secure the whole to himself, without regard to the real damage, we bring back the oppressive rule of the common law The griping creditor will always use the particular form, or phraseology of contract, which will secure him his pound of flesh ; unless tho courts interfere, in all cases, and tell him that, from the very nature and essence of