34 Barb. 157 | N.Y. Sup. Ct. | 1860
Upon the face of the transaction, as it appears upon the undisputed evidence given on the trial of this action, it seems to me to present a clear case of usury. The defendant Murray, in the fore part of the month of September, 1857, applied to the witness Wood, who was then keeping anexchange and banking office at Corning, for the loan of $200. Wood said he had a note against one Morrow for $150, payable in hemlock lumber, and if the defendant would take that note he would let him have the $200 and take the note of the defendants for $350. Murray told him he did not want the Morrow note, and that
In this view of the law of the case, the refusal of the circuit judge to charge as requested on this point was error, and
But there is another view of the case which seems to me more satisfactory upon the facts. The evidence in the case shows quite conclusively that this Morrow note was in fact worthless ; that the parties to it, at the time it was turned out to the defendants, were entirely insolvent and had been so, the maker for six years and the indorser for several years. It appears, also, that Wood had tried to trade off the note before he transferred it to the defendants, for a buggy, and could not trade, although the owner of the buggy desired to sell it, and that at the time when Wood proposed to turn it out to the defendant Murray, the latter told him “ that he did not consider it good,” and also told him he did not want the note, and did not think he could use it, &c. In view of these facts it seems to me quite clear that Wood intended, in making the loan of the $200, to get on such loan, out of the defendants, the sum of $150, the amount of the Morrow note, in addition to the interest on the money loaned, if the note proved worthless. His desire to part with it and his insisting on the defendants’ taking it with the $200, implies'upon its face that he regarded it as certainly a doubtful debt, or at least not equal to money. The contract then, upon its face, in this view, was a contract to loan $200, and to turn out a worthless or doubtful note for $150, and take the defendants’ note for the sum of $350 and interest. This $150 was thus taken for and upon the loan of $200 for the consideration of such loan and as a condition thereof, and for the forbearance of this $200 two months. In this view of the. facts they present a clear case of usuiy. But it is said that the contract is not usurious in this view, because Wood agreed to guar* anty the note, and that such agreement of guaranty meant a valid guaranty, and so the learned judge charged at the cir
But it is said that though Wood knew that this guaranty was invalid, there was no intent to evade the statute of usury, and this is the point on which the case obviously turned at the circuit. But this will not do. This man Wood cannot be let off upon the ground that he intended to commit a fraud, but not usury. If he knew his contract of guaranty to be invalid, he knew also, and the defendants also must be presumed to have known what was the legal effect of the transaction, and that he was to get this §150, or might get it for nothing, out of these defendants. That constitutes usury,
New trial granted.
Smith, Johnson and Knox, Justices.]