10 Paige Ch. 94 | New York Court of Chancery | 1843
The only question necessary to be considered in this case is, whether the transaction as stated in the answer of Bartle and others is usurious. There is no allegation that the form of providing for a commission of two and a half per cent, upon the acceptance of the. drafts which should not be paid with the proceeds of produce, was resorted to or intended as a mere cover for usury, or as extra interest upon moneys tobe loaned to the obligors in the bond, and to the former firm. It is not per se usurious for an agent or factor to agree for a reasonable commission, to be paid by the principal, for accepting and paying bills with funds furnished by the latter. And such I understand from
It is true the parties contemplated that the bills would generally be paid with the proceeds of produce ; in which case the two and a half per cent, upon the amount of sales, was all the compensation the complainants were to receive for their trouble and expense, both for selling the produce and accepting and paying the drafts when they became due. But they also seem to have contemplated that the drawers would not always be able to send produce sufficient to meet and take up the drafts when they became due j and that it might sometimes be necessary that they should transmit other funds for that purpose. There is no pretence in the answer, however, that there was any agreement, or understanding between the parties, that the obligors should be authorized to draw without making provision for the payment of such drafts, at the times when they became payable, either by sending produce to be sold, or by remitting other funds to the complainants for that purpose. Even if the agreement by its terms contemplated an advance of money to pay the bills when they became due, so that they should not be returned protested if the drawers did not furnish the means of paying them at the day, it would still be a question of fact, to be decided by proof, whether the two and a half per cent was intended as a mere shift to cover an usurious premium on such advances, or as a compensation for the trouble and expense of accepting and paying the bills by the complainants, as the agents of the drawers. (Nourse v. Prime, 7 John. Ch. Rep. 78. Comyn on Usury, 133.) To enable either party to take proofs on this question, the answer should contain an allegation, or averment, that the parties intended the commission, upon the acceptances, as a premium for the advance of the money, beyond the legal rate of interest. The allegation in the answer of Mrs. Norton, the widow, that she is informed and believes the transaction is tainted with usury, is not sufficient to render it necessary to file a replication to that answer.
