Rogers v. Buckingham

Butler, J. This would have been unquestionably an usurious loan if made by David Bulkley. It was in fact made by his son as his agent. The question in the case is therefore one of authority. If the loan as made was authorized originally by David Bulkley, or was subsequently and intelligently ratified by him, it was usurious; but if the additional sum of ten dollars was exacted by and paid to the agent for the use and benefit of the agent only, without prior authority from the principal, or subsequent knowledge and ratification by him, it was not usurious. [86] It is not found as a fact that the agent was authorized to take the usurious excess. Such authority will not be presumed where the agency is special, and limited to a single transaction. It may be presumed where the agency is general, and embraces the business of making, managing and collecting the loans of a monied man; and the facts found show such an agency in this case. But it is a presumption of fact and may be rebutted, and whether it was or not in this case, it was the duty of the auditor to determine. As the facts found show a general agency we must assume that he would have found the authority unless the presumption was rebutted, and when he says that he does not find that David Bulkley knew of the arrangement or received the excess, we must take it as a substantial finding that he did not authorize or ratify it. And we think that the peculiar and distinct manner in which the ten dollars excess was agreed to be paid, in connection with the other facts found, would have justified the auditor in finding that it was an unauthorized exaction by the agent for his compensation, and must have been so understood by. the borrower. .But that finding does not cover the whole ground. Sturges Bulkley died in 185T. There is nothing to show that David Bulkley did not then come to a knowledge of the nature of the transaction, and assent to a continuance of the arrangement, as continued in his behalf, and receive the excess paid. If he did, as we may presume, then and thereafter the loan became usurious as to him, and all subsequent payments of interest should be holden payments of principal. I do not think the principle adopted in Fisher v. Bidwell, though just and equitable, should be extended beyond an analogous case. That principle is not applicable to a loan on time which is not due, and in respect to which there has been no default; nor to a loan evidenced by a note on demand which was intended to lie, and where there has been no demand and no default and consequently no damage. In this case the note was on demand, was intended to lie, and was never demanded until the suit was brought, and then all the payments had been made. [87] The superior court should be advised to allow and deduct from the. amount loaned the payments made after the death of Sturges Bulkley, with interest on them from the time when made till the time of demand made by the commencement of the suit, and render judgment for the balance of the original loan, with interest on such balance from the commencement of the suit. That method of computation will give the defendant the interest on his payments, which can not otherwise be had, as there is no interest from' which to deduct them, and give to the plaintiff interest as damages on the principal for its detention after it was demanded, and it became the duty of the defendant to pay it, in conformity to . the principle adopted in Fisher v. Bidwell. In this opinion Dutton and Park, Js., concurred. Hinman, O. J., being related to one of the parties, did not sit.