18 Ala. 552 | Ala. | 1851
Lead Opinion
The facts of this case, so far as they are material to the understanding of the questions of law raised by the assignments of error, may be thus stated : In May 1847, F. M. Grant, a planter residing in Sumter county, applied to Lyon & Baker, the plaintiffs below, who were commission merchants in Mobile, for an advance of money, but they declined to let him have it- He then solicited the acceptance by the plaintiffs of a bill of exchange, drawn jointly by Swilley & Riley and himself, for thirteen hundred and eighty-one dollars and twenty-two cents, dated the first of May 1847, and due at nine months. This bill the plaintiffs agreed to accept, and Grant presented a blank, with the names of himself, Samuel Swilley and Cornelius Riley signed to it, and it was filled up in the form of a bill of exchange and accepted by Lyon & Baker, and made payable to the order of Robert A. Baker, one of the firm of Lyon & Baker, and by him endorsed. This bill was afterwards negotiated to Jones Fuller, and upon its maturity, it was paid by the acceptors. The money obtained on the bill from Fuller was paid to Grant. At the time the bill u'as accepted, Lyon & Baker had no funds in their hands belonging to the drawers, nor to either.of them, and they paid the bill with their own funds. They charged the drawers five per cent, for accepting and paying the bill, which is part of the sum sought to be recovered, and proved that it was the regular custom for commission merchants in Mobile to charge five per cent, for accepting and advancing the money on bills of exchange, accepted by them for the accommodation of the drawers, which sum was an additional charge to the lawful interest on the amount of the bill after its maturity. It was also shown that it was not usual for commission merchants to accept bills of exchange for planters, but upon the promise or expectation that the planter would ship his cotton to them, for the purpose of being sold and of their being thus put in funds to pay the bill, or to pay them
1. The ruling of the court in refusing to give the charge requested, as well as in the charge given, is fully vindicated by the decision of this court in the case of Brown v. Harrison & Robinson, 17 Ala. 774. We there held that a charge by a commission merchant of five per cent., in addition to legal interest, for accepting and advancing the money to pay bills drawn on him by his customers, if intended as a fair compensation for the risk, trouble, and expense incurred, is not usurious. We are fully satisfied that this opinion is in consonance with the well settled principles of commercial law. It is true, that if the transaction was a device to evade the statute against usury, then the mere form of the contract could not relieve the party seeking to enforce it from the consequences of usury; for mere device or shift cannot purge the contract, if it be tainted with the intent to take more than lawful interest by way of loan. But if there is no loan of money by the parly claiming such commissions, and they are charged for risk and trouble incurred at the request of the drawer, neither the statute, nor morality, forbids reasonable compensation for such risk and trouble. — Floyer v. Edwards, Cowper, 112; Ketchum v. Barker, 4 Hill, 224; Barnes v. Fry, 15 Ves. 120; Brown v. Harrison & Robinson, sup.
2. The defendant also requested the court to charge the jury, that if they believed from the evidence that Swilley & Riley
3. The court was further requested to charge the jury, that if they believed the defendants were the securities of Grant, they were discharged by the failure of the plaintiffs to appropriate the proceeds of the cotton received from Grant’s administrator to
After the most deliberate consideration of this case, I am satisfied that there is no error in the record, and the judgment is affirmed.
Dissenting Opinion
dissenting, said be thought it exceedingly clear that the opinion of the majority of the court mistook the the law, as to the right of the plaintiffs in this case to recover the commissions against Swilley & Riley, who made no promise and assumed no liability, other than by merely putting their names upon the bill as securities for the other drawer — the fact of their being but securities having been known to the plaintiffs at the time they accepted and paid the bill. Conceding the bill, after its payment, was evidence of a written contract, upon which, connected with proof of its payment by the plaintiffs, as accommodation acceptors, the law raises an implied promise to pay, upon which an action would lie as against Swilley & Riley, -the securities, (a proposition difficult to maintain upon principle and legal analogy,) yet they cannot be held bound beyond the liability as ascertained by their written'contract. The security has the.right to repose upon the terms of bis contract. S. & R. made no contract to be responsible to the plaintiffs for commissions for accepting and paying the bill, nor is it shown that they even knew that the blank was to be filled up so as to make them the drawers of a bill. If then they can be made liable for such commissions, they are charged beyond their contract, — upon some other contract or liability. To explain more fully, suppose the acceptors had not paid the bill, but S. & R. bad paid it, they would then have satisfied their undertaking. Now could the acceptors in that case have sued them for the commissions for accepting? There is no principle of law which would justify such an action. To Bold that the law in such cases would imply a promise to pay on the part of the surety, would be to charge the sureties beyond and outside the contract. It would, furthermore, enable the plaintiffs to recover upon an implied contract, which if it had been express, but verbal, would have been directly obnoxious to the statute of frauds, as an agreement to answer, on the part of S. & R., for the default of Grant in failing to pay these commissions to the plaintiffs.