Devito v. Freberg

Case, J. The finding acquits the plaintiff of any forbidden act or bargain in making the loan, as well as of any unlawful intent in taking the note to secure its payment. The evidence certified to us justifies each of these conclusions of fact, and both must stand. It was undisputed that the only suggestion of a bonus or charge for the use of the money, came from Freberg, the borrower, and other testimony gave ample warrant for finding not only that DeVito refused it, but that the note was urged upon him by Freberg with an express understanding that the lender neither wanted nor expected anything more than the repayment of his money. Any apparent inconsistency between that attitude and a reluctant acceptance of the note for an amount greater than the sum lent, was a matter for *148 the trial court to consider in weighing the testimony. In no event is it suggestive enough to militate with us against the explicit finding on this feature of the case. The defendant seems to contend, however, that where the amount of the note exceeds the amount of the loan by a sum greater than the interest charge sanctioned by the statute, that fact alone supplies the illegal intent and conclusively establishes a violation of the statute. This is not true. Whether in taking the note for more than the underlying Joan the plaintiff intended to evade the prohibitions of the statute, was in itself a vital question of fact for the trier’s determination,— as the matter of intent always must be in cases arising under this or any analogous statute aimed at usurious practices. Douglass v. Boulevard Co., 91 Conn. 601, 604, 100 Atl. 1067. For while the taking of the note was indispensable to bring this phase of the transaction under the ban of the statutes, the further element of a specific unlawful intent was equally so. Proof of the former of course does not of itself establish the latter, and so long as the main fact of taking the note is susceptible of an explanation which strips the act of the attendant intent required to make it offensive to the law, that explanation must be always available to one challenged under either the civil or criminal aspect of the statute. This in no sense loses sight of the fact that cases may be frequent where the circumstances surrounding the taking of such a note point so irresistibly to a concealed corrupt motive as to demand the inference of an accompanying intent to evade the statute. This case is not of that class, as the record discloses it to us, and the trial court’s finding absolving the plaintiff of any such intent, was fairly if not necessarily forecast by the facts found to attend the actual negotiation of the loan. *149 These considerations dispose of the defendant’s final claim. Since neither the loan nor the taking of the note violated any provision of the statutes relating to the subject, this action upon the note was obviously not within the prohibited class. There is no error. In this opinion the other judges concurred.