This note was for f800, payable “ in Baltimore bank notes,” with twelve and a half per cent, interest; аnd the question is, Was this usurious ? The rule of law is well settled, that when the payee takes a risk by which he runs the hazard of losing the principal sum, or of receiving less than the sum originally due, with lawful interest, it is not usurious for him to stipulate for, or receive more interest than is prescribed by the statute. Thus, in the case of Cummings v. Williams,
The сase of Sbarpley v. Hurrell, 3 Croke, is more directly in point. There the obligee advanced money for victualling a ship, payable with ten per cent, interest, when the ship should return from her voyage, and it was held not to be usurious, because the obligee took the hazard of the return of the ship, and if she had never returned, he would have lost both principal and interest. Still mоre analogous to the case before us, is that of Hombert v. Fitch, Kirby, 265, where the obligation wаs for the loan of $16,839 in final settlement certificates, and the borrower agreed to give $1,000 fоr the loan for six months. This was held not to be usurious, as the loan was to be repaid in those certificates, which might depreciate so as to reduce the value of what was to be рaid, with the stipulated premium, to less than the value of the certificates loaned, at thе time the loan was made. These cases serve to illustrate the principle. But it must not be understood that every hazard which the lender takes will justify him in taking "usurious interest; for he who lends money can never know with absolute certainty that it will ever be repaid. It has been always held, that the risk nеcessarily incurred by every creditor, of the death or insolvency of the borrower, is not suсh a hazard as will authorize the lender to stipulate for more interest than is authorized by the stаtute of usury. Colton v. Dunham,
In the case before us, there was, no doubt, a palpable and substantial risk run by the payee of the note. The maker had aright to discharge the debt in Baltimore bank notes, at their nоminal value, and in this action no more than their real value could be recovered. Dunlаp v. Smith, 12 Illinois, 399. It is not necessary now to say whether it was the right of the payor to make the payment in the most depreciated of those notes, had there been a difference in their value, or whether he would have been liable to the extent of the most valuable. It is enough to know, that, like every thing else except money, their value was liable to fluctuate, аnd that in the course of commercial changes, they might become greatly depreciated, if not almost valueless in the market by the end of the three years for which the credit wаs given, so that the lender would lose more than the whole interest agreed to be paid. With suсh a contingency, the authorities are uniform, that the excessive interest stipulated for, did not infect the transaction with usury. In form, it is true, this was a loan, but the real character of the transаction was more in the nature of a speculation in bank paper, than a loan of money. For eight hundred dollars paid down, one party agreed to pay to the other, at the expiration of three years, so many dolllars in Baltimore bank notes, whether their value might be more or less. Upon the trial, there was no evidence showing that they were worth less thаn their nominal amount, and hence, the judgment was not for too much, and the defendant below had no just cause of complaint.
The judgment of the circuit court must be affirmed.
Judgment affirmed.