62 F. 665 | 5th Cir. | 1894
This suit was commenced in the court below by Coffin, Stauton, and Street, citizens of New York, and doing business under the name of Coffin & Stanton, alleging that they were the owners of 3,940 shares out of total capital stock of 4,000 shares of the capital stock of the Blue Ridge & Atlantic Railroad Company, a railroad situated in Georgia, and also owners of 300 first mortgage bonds of said road, and that one W. B. Thomas, a citizen of Georgia, who had been by them appointed manager of said road, had been endeavoring to perpetuate his control of
The history of the case is that the appellant, W. B. Thomas, being the owner of the above-stated shares of stock and bonds of the said railroad company, and the president of it, and desiring to borrow money for the purpose of paying off an existing lien and further improving the property, made application to appellees, Coffin & Stanton, of New York, in March, 1889, for a loan, to be secured by a deposit of the aforesaid shares of stock and bonds, and procured from them a loan of $30,000, purporting to be procured from the Loan & Investment Company a corporation of West- Virginia, incorporated for the purpose of loaning money, and for tvhich Coffin & Stanton were acting as brokers he giving a note therefor in the name of the said railroad company. For this loan he was to pay 6 per cent, interest, and Coffin & Stanton 5 per cent, commission for procuring it. The complainants subsequently advanced him $12,000 more and when the debt became due extended it for another year, they charging $15,000 commissions and he giving them in addition twenty-five $1,000 bonds of the railroad company, and a note for $75,000 to the Loan & Investment Company. Coffin, complainant, testifies that the commissions were charged and the bonds given at the urgent solicitation of the appellant, Thomas, who was desirous of giving appellees a portion of the profits that he was anticipating making from a sale of the property then in contemplation. The same stock and remaining 275 bonds were left as a security on the loan; and Thbmas agreed if at any time more security was required he would furnish it. In December a demand was made for further security, and, after some discussion, he charged that the contracts were invalid, as tainted with usury, but stated, in effect, that he did not desire to take advantage of that defense, and was willing to do what was right. The result, as appears from a careful examination of all the testimony, was that ¿ter considerable negotiation it was agreed that the contracts should be purged from any usury, and a final one entered into. In accordance with this understanding, the amount of the indebtedness was reduced from something over $75,900 to about $63,000, purging out all that was at the time claimed to be usury and a final balance determined, the 25 bonds restored to the fund and an agreement in two parts, or two agreements, in writing, entered into the 17th of March, 1891, signed by Thomas and Coffin & Stanton. The first of these agreements, after reciting the negotiations which had been had between the parties stated that as it was the intention of the parties to provide by this agreement for the full compromise and adjustment of all manner of claims, disputes, and controversies growing out of these transactions, Thomas bargained, sold, and conveyed to Coffin & Stanton all the right, title, and interest that he held in the railroad company, and its property of any description, and in
The argument that the complainants were private bankers, and therefore exempt from the penalty of forfeiture of the debt, and only liable to a loss of twice the interest improperly collected, was not touched upon by the appellant, and was only contained in a brief of the appellees in reply to one of appellant. What reply may have been made to it, had an opportunity offered, we do not know; but the position taken therein seems applicable to this case, and conclusive thereof, if there had been no other defense to the charge of usury. The testimony shows that complainants were bankers, and the laws of New York appear to have extended to such individuals the immunity for taking more than the legal rate of interest, which at one time was only enjoyed by incorporated institutions, putting them upon an equality with the national banks in that respect. People v. Doty, 80 N. Y. 225; Perkins v. Smith, 116 N. Y. 441, 28 N. E. 21; Bank v. Dearing, 91 U. S. 29; Bank v. Johnson, 104 U. S. 271. But we do not consider it necessary to rely alone upon this position in order to determine the case. The language of the mutual release of the 18th of March, 1891, is sufficient to conclude any complaint or claim which either party had
We concur with the view's and findings of the court below, and the decree appealed from is affirmed.