Marvin v. Fester

By the Court, Savage, C. J. The first objection is, that the original notes were usurious upon their face, and therefore the present plaintiffs had notice of the usury. It is true that the notes promise the payment of interest from a time anterior to the date of the notes, and if the notes were to be considered as evidence of money lent at their date, there would perhaps be more than seven per cent, reserved ; but it is well known that notes are given for property sold, and upon other business transactions, as well as for money lent. Usury is a defence which must be strictly proved, and the court will not presume a state of facts to sustain that defence, where the instrument is consistent with correct, dealing. If a merchant sell goods upon a credit of six months after the sale the purchaser gives his note bearing interest from the time of the sale, the transaction is an honest one. Where an instrument will bear two constructions, one of which will render it operative and the other void, the former should be adopted. 3 Cowen, 290. So where facts are to be presumed in relation to a contract, those should be preferred which render the instrument valid: it is sufficient in this case that a note so drawn is not necessarily usurious. Another ground of usury relied on is, that interest was cast upon the notes which had not become payable, and included in the defendants’ notes. The answer is that no interest was cast which had not in fact accrued, though it was not payable because the principal was not payable ; but there was no usury. The defendants purchased thej notes given by Sprague & Dann at a certain price, for which they gave their notes. There was no loan of money, and they gave no more than the amount of principal and interest; but if they had given more, that of itself would not be evidence of usury. Judgment for plaintiffs.