Page images

disposition is made of the "license fee” when by the payee. The agreement is, therefore, not collected. By the provisions of the act it is ap- within the statute of frauds, so as to be required propriated as indemnity to persons that have to be in writing. The agreement is what is sustained damage done by dogs, other than their known as an accord executory; that is to say, it own, tp sheep, and that would appear to be in is an agreement upon the sum to be paid and rethe interest of justice and right. No better dis-ceived at a future day in satisfaction of the note. position could be made of it.

If the accord had been executed there would The demórrer to the bill was properly sus have been a satisfaction extinguishing the note, tained, and the decree of the circuit court will the case being taken out of the rule by which be affirmed.

payment of a part is held insufficient to satisfy Decree affirmed.

the whole of a liquidated indebtedness by the

fact the payment was to be made before the inAGREEMENT-SETTLEMENT. debtedness fell due. Sonnenberg v. Riedel, 16 Minn.

83 ; Brooks v. White, 2 Metc. 283. SUPREME COURT OF MINNESOTA. The case is, then, one of a promise on the part

of the plaintiff to do something of advantage in SCHWEIDER V. LANG.

law to the defendant, and on the part of the de

fendant to do something of advantage in law to

July 3, 1882. the plaintiff--a case of mutual promises, one of An agreement between the maker and holder of a note which if the consideration of the other. The not due, that the former will pay and the latter receive agreement was valid and binding upon both sum less than the unpaid amount called for by the note in parties. The plaintiff has duly offered to perform full satisfaction of the same, is valid,

on his part. The defendant has refused to accept If the maker duly offer to perform on his part, and the

the proffered performance, as also to perform on payee refuses to perform on his part, an action lies by

his part at plaintiff's request, and has moreover the former for the damages resulting to him from the

disabled himself from performing by disposing breach of contract by the latter.

of the note. The plantiff is, therefore, in accordBERRY, J.

ance with the general rule which gives damages On September 27, 1881, defendant, as payee, for breach of contract, entitled to recover the holding plaintiff's promissory note upon which damages which have resulted to him from this there was an unpaid balance of $1,850, falling breach by defendant. Billings A. Vanderbeck, 23 due November 10, 1882, with interest to accrue, Barb. 546; Scott v. Frank, 53 Barb. 533; Vesy v. they agreed as follows: Defendant agreed to Levy, 13 How. 345. accept $1,750 in full satisfaction of the balance

The order overruling the demurrer is affirmed. of principal and interest called for by the note; $150 to be paid by plaintiff within one week and $1,600 within two weeks from said September 27; the note to be thereupon delivered up and a mortgage securing the same cancelled. Plaintiff agreed to raise the $1.750 and pay the same

INDIANA. to defendant as above specified. It was subsequently mutually agreed that defendant should

(Supreme Court.) call upon plaintiff at his residence, within a week from September 27th, to receive the $150

SCARCE » GALL. payment, plaintiff to have the same there in readiness. Plaintiff had and kept the $150 in

Promise for benefit of another-Novation. The comreadiness during the week; but defendant failed plaint of appellee alleged that he had a judgment to call for it at any time, and plaintiff was un

fien on real estate senior to a mortgage held by able to find him during the week mentioned appellant; that one Haverstick sold the land Within two weeks from September 27th, plaintiff, under a niortgage prior to both, and that appelafter much expense and trouble, procured the

lant purchased from the latter his certificate of sum of $1,600," and on October 10, 1881, duly purchase, and in consideration of the sale agreed, tendered the sum of $1,750 to the defendant in

in writing, to pay appellee 's judgment. fulfilment of his (plaintiff's) agreement, and re

Held: The contract could be enforced. A writquested defendant to fulfil on his part. Defend

ten promise, founded upon a new and valuable ant refused to receive the money or to perform consideration, to pay the debt of a third person, his part of the agreement, having on October

is valid, although there is no release of the origi1st, without plaintiff's knowledge, sold and trans

nal debtor. The consideration of the promise ferred the note and mortgage to a third party, lee was the assi çnment of the sheriff's certifi

made to Haverstick for the benefit of the appelto whom plaintiff became thereby bound to pay the full unpaid amount called for by the note.

cate. Plaintiff brings this action for damages for

Judgment affirmed. breach of contract. The agreement between the parties was not for the sale of the note and mortgage, but one by which the maker of these instruments was to be discharged from liability thereon

Digest of Decisions.

Ohio Law Journal.


action by meeting and interchanging views in advance. The popular notion of conspirators

enters to a considerable extent into the legal noCOLUMBUS, OHIO, : AUGUST 3, 1882. tions entertained in the profession; and is

thought to imply a meeting of those in the comA SOMEWHAT novel proceeding was heard last bination-a mutual communication of their purweek in the Circuit Court of Fairfax County,

poses, a joint contriving of the means by which Va. John Johns, who is contesting the will of der a secrecy indicating consciousńcss of danger


purpose shall be carried out, and all this unhis father, the late Bishop Johns, of Virginia, and of guilt. in the Baltimore courts, sued for an injunction In truth, the legal doctrine of conspiracy in to restrain the circuit clerk of Fairfax County our law involves nothing more than intelligant from furnishing the Baltimore court with a pre-concert for the sake of effecting the criminal copy of proceedings showing that the will was

purpose. It does not require subterranean properly probated in Virginia. This is certainly meetings, nor dark, lanterns, 'por pass words,

nor, indeed, any of the incidents of express conan original method of interposing objections to fidence, either as to the result to be attained, or testimony. The decision upon the application as to the means to be need. It is enough that for injunction is not announced.

the parties understand each other; that they are possessed of a common purpose, and that each

is suflicientny conscious of the purpose of the othTHE AMERICAN BAR ASSOCIATION.

er to expect Co-operation, and that their action is thus intciligently though it may be silently

concerted. If the confederates are inexperiencThe Fifth Annual meeting of the Association

ed in crime, they may require actual meeting, will be held at Saratoga, August 8th, 9th, 10th,

common deliberation, and express concert. If and 11th, 1982.

they are old offenders, they may understand The opening address will be by Hon. Francis

each other with scarcely a word, and form the Kernan, Vice President, acting, by request of

same common purpose of cooperation in the

same illegal purpose, and with the same mutual the Executive Committee, in the place of Hon. reliance, but with more interchango of expressClarkson N. Potter, deceased.

ed intention than old partners with cards, or During the sessions of the Association the fol

young people playing "hunt the slipper.” The

degree to which express interchange of idea and lowing papers will be read: "The Doctrine of expressed intention between them will exist has Punitive Damages, and its Effect upon the nothing to do with the legal question of conspirEthics of the Profession,” by Gustave Koerner,

acy, although it ordinarily has much to do with

success in convincing a jury with the popular Esq., of Illinois; "The Civil Law, as trans- notions to which we have alluded. The degree planted in Louisiana," by Thomas J. Semmes, of such interchange depends upon the novelty Esq., of New Orleans; "The Laws governing the

of the enterprise and the intimacy of the partic

ipants. There are plenty of pals among the Issue and Collection of Municipal Bonds,” by rogues of New York with whom a wink or a nod J. B. Henderson, Esq., of Missouri; and “Trial might be all the communication between the by Jury, its Defects and their Remedies," by

two necessary to the working up and carrying

into effect of a conspiracy; and if, where this was Isaac M. Jordan, Esq, of Ohio.

all that could be shown, it might be impossible The Annual Dinner will be given at the to convict, it would not be because the legal eleGrand Union Hotel, at 8 o'clock P. M., on Fri- ments of a conspiracy essentially require any

thing more, but becausc a charge of conspiracy day, August 11th.

is one which in the popular mind raises the ex

pectation of something more. The characterisCONSPIRACY.

tic element of conspiracy is not found in every

crime committed by a combination of men, it is The Star-Route cases may afford an excellent true, but on the other hand, it is found in many opportunity to clear up some of the fog which crimes committed without previous inter-comencumbers the legal idea of conspiracy, but munication of plot and scheme expressed in lanwhether the opportunity will be improved re- guage and in the assigning of parts. Whether mains to be seen. We all know how largely these are involved or not, the real question is the cases in England which fall under this head whether there was intelligent pre-concert of achave been colored by the character of contests be- tion. tween citizens and the monarchial government; We do not suggest or infer anything in the and conspiracy has come to suggest inevitably present state of the case as to the merits of the to many minds the idea not only of acting in controversy on trial at Washington, but the disconcert in a criminal purpose, but also the idea cussion of the legal question which is now going of deliberately and expressly concerting such on is calculated to present this aspect of the case and may perhaps admonish prosecuting attor- sidering the New York cascs, and those froin neys of the peculiar difficulty of practicality at- States having similar statutes. tending indictments of this character.-N. Y. In the case of Meagoe v. Simmons, (1 Moo. & Daily Register.

M. 121,) the action was brought by the endorsee

against the acceptor of a bill of exchange, for LIABILITY OF PRINCIPAL FOR USU- £1,000. The defense was, that the bill had been RIOUS LOANS MADE BY AN AGENT. 'usuriously discounted by the plaintiff through

the agency of one Coates. It was clear, from the Usury is defined to be “The excess over the facts, that Coates, who had procured the dislegal rate charged to a borrower for the use of count for De Lisle, the payee of the bill, had money.” (2 Bouv. L. Dic. 629.,) Originally withheld from him £100 by way of premium fur the word was applied to all interest reserved procuring the discount. But it was doubtful for the use of money. Blackstone says: "A whether the plaintiff had retained any part of capital distinction must therefore be made this sum, or whether he was cognizant of the between a moderate and exhorbitant profit; to agreement between Coates and De Lisle that the former of which we usually give the name anything beyond legal discount had been reof interest, to the latter, the truly odious name tained; the defendant endeavored to make out of usury; the former is necessary in every civil that Coates was the agent of the plaintiff, and state, if it be but to exclude the latter, which the plaintiff that he was the agent of De Lisle ought never to be tolerated in any well-regulated only. Lord Tenterden, C. J., in summing up to society. For, as the whole of this matter is well the jury, said: “I give it my opinion in point bummed up by Grotious, 'If the compensation by of law, most distinctly, that if the plaintiff law does not exceed the proportion of the hazard caused this transaction to pass through the run or the want felt by the loan, its allowance is hands of Coates, in order that he might receive neither repugnant to the revealed nor the nat- from De Lisle the premium over and above the ural law; but if it exceeds these bounds it is regular discount, there is usury, and the plaintiff then oppressive usury; and though the munici

, retained

If he has make it just,'3're it impunity, they can never nothing beyond the legal discount. (2 Bla. Comm. 456.

engaged, beyond the regular discount to himself, In the third of the twelve tables it is said : for Coates's benefit, that he should receive the pay. "Let him who takes more than one per cent. in- ment, then the transaction is unlawful, and your terest for money be condemned to pay four times verdict must be for the defendant." The jury the sum lent." (Coop. Just. 658.) In the English found for the defendant. statute of 12 Anne, stat. 2, ch. 16, it was enacted In Large v. Passmore (5 Serg. & R. 51,) the that all bonds, contracts, and assurances what- plaintiff advanced money to the defendants, in soever, made for payment of any principal, or consequence of which he received a mortgage of money lent, whereby usurious interest taken or real estate and a pledge of goods. He had, bereceived, shall be utterly void. A bill or note sides, undertaken to procure a discount for the was held under this statute to be void for usury, defendants of $60,000, in notes of Edward even in the hands of an innocent holder. (Cuth- Thomson.

For these considerations it was bert v. Haley, 8 Term Rep. 390; Low v. Waller, agreed that John Large was to have a commisDoug. 735; Ferrall v. Shaen, 1 Saund. 295; Parr sion of two and a half per cent. on all property v. Eliason, 1 East, 92.) By the statute 58 Geo. placed by the defendants in his hands, as well III., ch. 93, it was enacted that all bills and notes as upon Mr. Thomson's notes of $60,000, leaving thereafter made upon usurious consideration or out the amount of $37,000 if the same was paid contract should not be void in the hands of an when it became due. The court say : “Where endorsee for valuable consideration, unless such money has been loaned, it is so easy to cloak endorsee had actual notice of the usury before usurious interest under the name of commission paying the consideration. The statute of 1787 that the law contemplates it with a jealous eye. of New York, for preventing usury, declared that In the case of French v. Baron (2 Atk. 120,) all bonds, bills, notes, contracts, and assurances there was a private agreement between mortwhatsoever, made or taken upon an usurious gagor and mortgagee, that the latter should have consideration, shall be utterly void. It will be commission for his trouble in receiving the rents seen that this statute included bills and notes by and profits.' This might not be usury, strictly name which were not designated in the statute speaking, but Lord Hardwicke refused to allow of Anne, but held by the courts to be within its the mortgagee any more than his principal and provisions.

interest." The commission on the notes was not In 1830, the Legislature of New York adopted allowed. the English statute of 58 Geo. III., above referred In Grubb v. Brooke, et al., (47 Pa. St. 485,) to, and this act continued in force until 1837, three judgments had been obtained against the when it was repealed. By this repeal, commer- defendants, amounting to the sum of $30,000, on cial paper in New York founded on a usurious which executions were issued, and their propconsideration was void, even in the hands of a erty, an ore bank on Chestnut Hill, advertised bona fide holder. And the party guilty of usury to be sold. A proposition was made to the parseems to have been liable to a criminal prosecu- ties, by the firm of Brooke & Coates, to the effect tion. These facts must be borne in mind in con- that they would advance a certain sum in coal, and give their notes and acceptances for the bal- rected Pearson to lend her money on a corrupt and ance of the indebtedness; and when the amount usurious agreement; his authority, according to due on the judgments was fully paid, they were his own showing, was to lend it out; and this to be assigned to them and held for their use. must be held to mean only such loaning as is On the part of the defendants it was agreed sanctioned by law. If he should go further, and that they would consign iron to the plaintiffs to loan it on an usurious contract, he exceeds sell on commission, to enable them to meet these his authority, and if not afterwards sanctioned notes and acceptances as they came due. The by his principal, and loss result, he is liable to. judgments were all paid and assigned to Brooke her. But no consideration arising out of the re& Coates, but as the quantity of iron was not lation of principal and agent could divest the furnished, they sued out executions to collect the loan of its usurious character or deprive the borbalance claimed to be due them. Brooke & rower of his right to set it up against the lender Coates had rendered to Grubb & Company pe- in any proceeding against him on the usurious riodical accounts charging them with interest contract." on the balances duo them, with an additional In Steele v. Whipple, 21 Wend. 103 where the two and a half per cent. as commission on ad- holder of a note, payable to himself, requested vances, according to the alleged custom and another person to procure the note to be disagreement of the parties. The court say: (47 counted, who, by placing his name upon it as an Pa. St. 488,) "The defendants object to this (the indorser, procured it to be done, received the commission,) as usurious, and we think it is.” avails, and paid over the same, except the sum (Large v. Passmore, 5 Serg. & R. 51.)

of $30, which he retained for his indorsement In Pearson v. Bailey, (23 Ala. 537,) it was al- and trouble in the matter, it was held that the leged that the complainant borrowed $300 from transaction was usurious and that the usury James M. Pearson, at sixteen per cent., and to might be alleged in bar of the subsequently subsecure its payment executed

executed to him notes stituted note. amounting in the aggregate to the sum of $348, In Condit v. Baldwin, 21 N. Y. 219 the plaintwhich were payable December 25th, 1842; that iff, a resident of New Jersey, placed in the in the spring of 1843 the original notes were taken hands of one Williams, an attorney-at-law in up and new notes for the sum of $307 made in lieu Wayne County, New York, 8400 to invest for thereof, payable to John R. Slaughter, to draw her at lawful interest. One Baldwin, a resident interest at twelve per cent. It was alleged that of Wayne County, applied to one Mills, a resithe complainant had made various payments on dent of that county, to procure a loan for him of the debt, but on the 10th of October, 1845, Pear- $400, for two years, on his note. Mills applied Aon clnimed there was still due the sum of $418. to Williams for the loan. Williams stated that he This sum was secured by a mortgage containing preferred to loan the money on bond and morta power of sale, and in December, 1847, the gage, as in that event he would be paid for drawcomplainant paid Pearson $196 on the debt, and ing the same and for axamining the title. An in February following, the further sum of $25. arrangement was then entered into whereby The action was for an account, and to have the Mills promised to pay Williams $25 as attorney's mortgage declared satisfied. The court say : (23 fees. Mills then received $400 from Williams Ala. 541, 542,) “ The answer of James M. Pear- and paid it to Baldwin, and charged him $40 fur son, the principal actor in the usurious contract, his (Mills') services. Of this sum Mills paid $25 to does not deny the rate which was agreed upon Williams. It was held by a divided court that between himself and Baily when the loan was this did not constitute usury. effected, as it is charged in the bill, but admits In the majority opinion it is said: (21 N. Y. that it was stipulated that the sborrower was to 223.) “Williams availed himself of his position pay sixteen percent. for the loan, which was as the plaintiff's agent, to make a contract on his reserved in the notes given at the time; but he own account and for his own individyal seeks to avoid the force of our statute against benefit. In thus dealing he did not act usury by stating in his answer that the money assume to act as the plaintiff's agent. loaned by him to Bailey was not his own, but He required compensation for a service which belonged to Mrs. David, in the State of Georgia, he alleged he rendered to Baldwin. It was his who had deposited it with him for the purpose individual affair, not that of the plaintiff; and of loaning it out, but that he has been compelled if it was a shift or devics on his part to take and to pay it to her. This, we apprehend, will not and receive usurious interest to himself on this be allowed to change the nature of the contract; | loan, he has subjected himself to the penalties of it is as clearly usurious when made by him the statute. (3 Hawks, 28; The Commonwealth v. under pretence of agency for another as though Frost, 5 Mass. 53.). It was conceded on the arguhe stood alone in making it. But in such case ment that the plaintiff had not subjected herself the plea of usury can avail nothing in removing to an indictment for misdemeanor; that she was the unlawful character from the transaction. not liable criminaliter for these acts of her agent. tract, and no one has authority to give authority the defendants?a. Is it not a concession that she to another to do an unlawful act. The parties has not taken and received any usurious interest in such case are all principals: But in this on this loan? If so, how can it be contended case it does not appear that Mrs. David ever di- | that she has forfeited her money loaned, so far


as she is concerned legally? The agent has In Cheny v. White, (5 Neb. 261) one White aptaken and received the gratuity or usury, and plied to Perkins, an agent of Cheny, for a loan not the principal.

of $500. The loan was obtained for five years, It is evident that the arrangement to pay at seventeen per cent. per annum, with an addi. Williams $25 as a bonus for the loan was made tional charge of $15 as commissions of the agent without the knowledge or consent of the princi- for doing the business. It was held that the pal, and this fact seems to have been conceded. principal was bound even if he had no knowlAnd the court lay great stress upon the fact that edge of the unlawful agreement, and derived no "she has not subjected herself to an indictment advantage from it. In Chenyv, Woodruff, (6 for misdemeanor; that she was not liable crimi- Neb. 151) the agent who made the loan testified naliter for these acts of her agent,” and ask, Is it that he acted as the agent of the borrower in not a concession that she has not taken and re-procuring the loan and as the agent of the lend. ceived any usurious interest in this loan? The er after the loan was affected. It was held that majority of the court assume that because an in- the principal was bound by the acts of the agent. dictment would not lie against the principal, In Olmstead v. New England Mortgage Security that, therefore, there was no usury in the trans- Company, (11 Neb. 487), a loan of $350 was conaction, that this position is untenable will tracted for, and a promissory note and mortgage readily be seen. A principal would not be crim- to secure the same were made for that amount, inally liable for the criminal acts of an agent but the plaintiff was paid only the sum of $250. acting under either general or special employ: The business, both before and after the loan was inent, unless the principal commanded, advised, made, was transacted by one A. W. Ocabock and or consented to the agent's acts. But if the prin- | the Corbin Banking Company. It was held cipal claims the benefit of a bargain made for that the principal was affected by the usury. him by an agent, he takes it subject to the In the case of Acheson v. Chase, (9 N. W. Rep. means employed by the agent to bring it to a 734), it was held by the Supreme Court of Min. consummation.

nesota, that the principal was not affected by a This will be more fully discussed hereafter. usurious loan made by his agent. Comstock, Denio, and welles dissented. In the In the case of Payne v. Newcomb et al., (16 able dissenting opinion of Comstock, C. J., it is West. Jur. 89), decided by the Supreme Court of said : (21 N. Y. 229.), "Only one contract was Illinois, in November, 1881, it appears that one made which embraced the whole transaction. Mary M. Payne was the owner of about four hunThere was no agreement between the plaintiff, dred acres of land in Livingston County, in that through her agent, and the borrower, to lend Statc, and that in the year 1867 she and her $400 at lawful interest, and then a separate and husband applied to Newcomb, a loan-agent in distinct agreement between the agent and bor- Chicago, for a loan of $2,000. He loaned them rower for the extra $25. It was all included in the money, taking their note, payable to Herone contract. The agent said in substance: I rick Stevens in two years, with ten per cent. inwill lend you the $400, if, besides the legal in- terest, semi-annually, the notes being secured by terest which you pay to my principal, you will a trust-deed for the land to one Pierce, with a pay to me the sum of $25.' This was a single power of sale. The plaintiffs subsequently proindivisible proposition, and as such it was ac- cured other loans, in all about $6,630, and gave cepted by the borrower. In consideration of the other notes and trust-deeds. When each loan loan he agreed to repay it at a certain day with was made, Newcomb deducted from the amount interest, and he agreed also to pay $25 more to five per cent., which he claimed as commission the lender's agent. Here was one consideration for procuring the loan. There were several ex. and one agreement. That agreement might all tensions of the time for payment, and when they have been expressed in one or two writings, or were made he charged two and one-half per cent. it might have been without any writing. In for procuring them. When interest was not fact, one of these premises was evidenced by a promptly paid it was compounded at the rate the promissory note, the other rested in parol. These notes bore. circumstances are immaterial. There was but The plaintiffs paid in all about $5,800 on the one original agreement, which included the debt, yet on the 1st of November, 1877, Newwhole subject. When there is usury at the root comb furnished a statement to them, in which of a transaction, it has never before been thought he claimed there was still due $11,967.17. that the merely formal separation of the bor- A sale of the land being about to be had unrower's contract into different parts could take der the trust-deed, the plaintiffs filed a bill to the case out of the statute.” This case was fol- enjoin the sale, and for an account to aslowed in Bell v. Day 32 N. Y. 165 (Davis and certain what was equitably due after deductBrown JJ., dissenting) and Esterez v. Purdy, 66 ing usury and illegal charges. · The Circuit N. Y. 446 as stated in the opinions, upon the Court dismis-ed the bill, and, on appeal to the principal of stare decisis. In the case of Philo v. Appellate Court, the decree was affirmed. In Butterfield, 3 Neb. 556 where the borrower em- the Supreme Court the defendants insisted that ployed an agent and paid him the sum of $50 to Newcomb was not the agent of Stevens when obtain a loan for him, it was held that the per the several loans were made, but was the agent son lending the money was not chargeable with of the plaintiffs, and had a legal right to charge usury.

them for such services.

« PreviousContinue »