Richards v. Globe Bank

By the Court, Cole, J. We fully concur in the views expressed by the circuit court upon the evidence in this case, and as to what facts are established by it. We also think the conclusions of law drawn from these facts are correct and sound legal propositions. The objection taken to the warrant of attorney, that it was not such an instrument as is contemplated by the statute to authorize an entry of judgment upon, appears to us entirely untenable. The warrant of attorney recites: “ That whereas the subscribers are justly indebted to the Globe Bank, upon a certain promissory note, bearing even date herewith, payable sixty days after date thereof, to said bank or order, at the office of Wm. J. Bell & Co., in New York, the sum of five thousand dollars, with interest after due at the rate of ten per cent, per annum until paid. Now therefore,” &c., making and appointing, in the usual manner, an attorney to appear and confess judgment in favor of the bank or its assigns, upon the note. Now the particular defect ascribed to this warrant of attorney is, that it describes the note upon which judgment was to be entered, as one “bearing even date herewith,” while, in fact, the warrant of attorney was not dated at all. It appears that the warrant of attorney was a printed blank, and, undoubtedly through inadvertence, the date was not filled in when the instrument was executed. The warrant of attorney and the note were ujeon the same piece of paper, though in different instruments, and were mostly printed blanks. The note was properly dated, and there could be no doubt in respect to the note intended to accompany the warrant of attorney, and upon which the judgment was to be entered. [697] And although the date was thus omitted from the warrant of attorney, we do not think we should be authorized in ing it void for that reason. Our statute requires that the authority for confessing a judgment shall be in some proper instrument distinct from that containing the bond or contract, and we can but think that the authority in this case was a sufficient warrant of attorney in all respects. Sec. 13, chap. 102, R. S., 1849. Neither clo we think there is any ground for saying there was usury in the note in question. The note was dated at Milwaukee, and made payable in New York city, with interest after due at the rate of ten per cent, per annum. The makers of the note were directors of the Milwaukee & Hori-con R. R. Co., a corporation of this state, and were citizens of this state, and executed the note here, except Smith, who executed the same in New York city, being temporarily absent there on business of the company. The railroad, for whose use and benefit the loan was made, was a corporation organized under the laws of Wisconsin, having its principal office in Milwaukee, and operating its road here. The money was obtained of the bank in Milwaukee, also a corporation of this state, and, although the note was made payable in New York, at a rate of interest exceeding the legal rate of that state, still it was no more than the bank was authorized to contract for by the laws of this state, and hence would repel all presumption that the parties resorted 'to this expedient to avoid our laws upon usury. Had the note been made payable in Wisconsin, or generally, there would have been no ground for saying that it was usurious. It would have been a valid contract, and one which the courts of this state would have enforced. The interest agreed to be paid was the legal and ordinary rate charged by our banks on discounting paper and making loans. Why then should not the contract be governed by the laws of this state, instead of the usury laws of New York ? Is there any reason for saying that the parties contracted with reference to the laws of another state, and not this? We can see none. Does the circumstance that the note was made payable in New York, render it a New York contract, to be governed by the laws [698] of that state in respect to usury ? Upon this point, the authorities cited by the counsel for the respondent, are too clear and emphatic to leave room for doubt. They certainly establish the proposition, that if the rate of interest be specified in the contract, and it be according to the law of the place where the contract was made, though that rate be higher than is lawful by the law of the place where payment is to be made, still the contract will be valid and binding. Depau vs. Humphreys, 4 Cond. La. R., 403; Chapman vs. Robertson, 6 Paige, 627; Pratt vs. Adams, 7 id., 615; 2 Kent’s Com., p. 460; Pecks vs. Mayo, 14 Vt., 33; Fisher vs. Otis, 3 Chandler, 83; Atwater vs. Roelofson, 4 American Law Reg., 550. See also a recent opinion of this court, Newman vs. Kershaw, where this question is quite fully discussed. “ The general doctrine is,” saj's Chancellor Kent, “that the law of the place where the contract is made, is to determine the rate of interest where the contract specifically gives interest; and this will be the case though the loan be secured by a mortgage on land in another state, unless there be circumstances to show that the parties had in view the laws of the latter place in respect to interest.” The rule thus laid down is adopted in Newman vs. Kershaw. We therefore think that under the facts of this case, the contract must be considered as a contract of this state, and that our laws are to control its validity in respect to the interest, though made payable in New York, where the rate of interest is less. It follows, from these views, that the judgment of the circuit court, dismissing the appellants’ complaint, must be affirmed.