Siegelman v. Jones

ELLISON, J. — This is an action in replevin. The judgment below was for plaintiff. It appears that plaintiff loaned defendant $90, and took his note for that sum with eight per cent interest, secured by a chattel mortgage. Plaintiff’s claim is based on the mortgage and the sole defense is usury in the loan. Defendant charges and the undisputed facts show that defendant only wanted to borrow $80, but that, obtaining the money through an attorney who charged him $.10 for procuring the loan, he executed his note for $90. [175] The evidence shows that plaintiff did not know that the attorney had charged the defendant for procuring’ the loan, nor did she know that any part of the $90 for which she gave her check was for the attorney’s compensation; nor did she know the attorney was receiving compensation. It was held in Brown v. Archer, 62 Mo. App. 287, that a lender could not put forward his agent to do a money-loaning business for him, with the expectation and knowledge that such agent would obtain from the borrower the compensation due him for such services to the lender, and escape the consequences of the agent’s unlawful exactions. Whether the attorney was plaintiff’s agent was a question passed upon by the trial court sitting as a jury. That court made a finding against the defendant’s theory, and the principal question presented is whether there was any evidence upon which to base such finding. An examination of the record shows to us a case, the decision of which, were we the tribunal to pass upon facts in the first instance, would not be free from embarrassment. But it is just such a case as the law has wisely left to be determined by the tribunal which has a view of the parties and witnesses and an opportunity for observations and conclusions which are necessarily denied us. We believe the record does present evidence and circumstances which justify the court in its conclusions. Complaint is made that the court refused to hear evidence of loans of plaintiff’s money made by the attorney referred to, after the present loam .The court heard all evidence as to other loans made before the present loan. The offers made of subsequent loans which were like those shown to have been made prior to the loan in controversy, were only cumulative and could not possibly have influenced the court considering the number which had already been shown. To show loans subsequent, which were of different character and in which the business relations between plaintiff and the at [176] torney were said to be different, would only evidence a change in tbeir relations after tbe loan in question and would of course not be competent. We do not believe, under tbe circumstances, and tbe character of tbe evidence already beard, that error was committed in tbe rulings to which we have referred. ; Other objections to evidence are not well taken. Tbe purpose of tbe evidence complained of, as being conversations out of defendant’s presence, as declared and specifically limited by tbe court was proper. And tbe same may be said of evidence of defendant’s promise to pay tbe note. After a careful examination of tbe case our conclusion is that tbe judgment should be affirmed. All concur.