Wallis v. Lehman, Abraham & Co.

Harrison, J. If the plaintiffs had sued on the account,, the notes were given in settlement of, they could have recovered only the rate of interest allowed by the laws of Louisiana where it was made, which the proof shows, is, when there is no stipulation for a higher rate, five per cent, per annum; but as it is in this state in which the notes were made and payable, it is competent to contract for as much as ten per cent, if the agreement be in writing; they were not usurious though including interest at more than five if not exceeding ten per cent. They were new contracts governed' by the laws of Arkansas. A note given in settlement of an account in which interest has accrued, for the accumulated amount, is not usurious. Kellogg v. Hickok, 1 Wend., 521; Townsend v. Corning, 1 Barb., 627; Morgan v. Bishop, 5 Paige, 98; Mills v. Thompson, 23 Texas, 308; The State v. Jackson, 1 John. Ch., 14; Hale v. Hale, 1 Cold., 233; LeGrange v. Hamilton, 4 Term Rep., 613. And if the defendants chose to pay ten per cent, interest on the advances made them by the plaintiffs, they might lawfully include the same as part of the principal in the notes, and if the interest charged — eight per cent. — and the commissions fox* advancing included in i.t, together, did not exceed interest at ten per cent;, the. notes were not usuxious. In the above cited case of Mills v. Thompson, the supreme court of Texas, says: “.The law in deciding whether a settlement involves usury or not, will look at the whole aniount of interest reserved, as distinct from such commissions as are allowable and receivable by law and the whole pei’iod of forbearance expended; and if the charge properly imputable to interest do not exceed the highest interest allowed by law for the whole pei’iod of forbearance, then the settlement can not be held to be usuxious.” ■ The plain and obvious meaning of the declai’ation asked by the defendants, which the court refused to make, though its language was not as exact as it might or perhaps should have been, was that the-highest rate of interest allowed by the law of Arkansas is ten per cent, per annum, and to intentionally take or reseiwe more by any device or contrivance whatever, renders the contract void both as to principal and interest. As so understood it correctly stated the law, but as the court found, as a matter of fact, that more than ten per cent, interest was not reserved in the notes, which finding a calculation of the interest shows to be true,-the defendants wei’e not prejudiced by its refusal so to declare the law, and the judgment is- right. Affirmed.