Kennedy v. Gibbs

Treat, C. J. This was an action of assumpsit, brought by Gibbs & Co. against Kennedy & Sons, in September, 1852. It appeared in evidence, that the plaintiffs were forwarding and commission merchants at Chicago; and that in May, 1852, they received by consignment a lot of goods for the defendants, on which they paid freight amounting to $182.10. They charged the defendants $5.79 for receiving and checking the goods; and also $4.70 for commissions on the amount advanced for freight. It was proved that the charges and commissions were customary and reasonable. The action was brought to recover the foregoing sums. The court instructed the jury, that the plaintiffs were entitled to recover interest on the amount advanced for freight. They had judgment for the amount claimed, and interest. Under the construction put upon the statute in the case of Sammis v. Clark, 13 Ill. 544, it is clear that the plaintiffs were not entitled to recover interest on the sum advanced for freight, unless the transaction amounted to a loan of money, or unless there was an unreasonable and vexatious delay of payment. In our opinion, it was not a loan of money within the meaning of the statute. The money was not advanced by the plaintiffs in the way of a loan, but it was paid out by them in the ordinary course of then business. The fact that they charged a commission on the amount advanced, in addition to all other charges on the goods, shows conclusively that they did not regard the transaction as a loan of money. If it could be considered as a loan, the charge for commissions would be illegal, and render the transaction usurious. It would be doing violence to the intentions of the parties to hold it to be a loan of money. The court erred in charging the jury, that the plaintiffs were, as a matter of course, entitled to recover interest. If they claimed interest because there had been an unreasonable and vexatious delay of payment, the case should have been put to the jury on that ground. It would be the province of the jury to determine whether payment had been unreasonably and vexatiously withheld. The judgment is reversed, and the cause remanded. Judgment reversed.