Bishopp v. Blair

Mr. Justice Windes delivered the opinion of the court. The principal defense made by appellant and now insisted upon in this court, is that all the dealings between him and the appellees constituted one continuous transaction, the whole of which is tainted by usury, and therefore that neither the appellee Blair nor Knott and Lewis are entitled to recover anything from him by way of interest, but that because of the usurious nature of the whole transaction they forfeited all claim to interest, and are only entitled to recover the balance due upon the respective notes held by them after deducting from the principal thereof the several payments made by way of commissions, attorney’s fees and interest, as well as for insurance which appellant claims was wrongfully paid out of the proceeds of the original loan of $30,000. Appellant also claims that the court erred in the allowance of §1,000 to complainant Blair, and to the defendants, Knott and Lewis, of §100 for solicitor’s fees; also that the evidence shows that the complainant Blair was not the legal owner and holder of the note of §27,500, at the time of the tiling of the bill, but that the same was owned by one Borland, and that the court erred in not dismissing the bill because said Borland was not made a party. Upon the theory that all the dealings between appellant and the firm of Knott, Tuttle & Lewis and Knott, Lewis & Co. constituted one transaction, was it usurious ? In order to sustain the charge of usury, the statute with reference thereto being highly penal in its nature, the evidence to support it must be satisfactory, and clearly establish it. Mosier v. Norton, 83 Ill. 519; Kihlholz v. Wolf, 103 Ill. 362; Goodwin v. Bishop, 145 Ill. 421; Stanley v. Trust & S. Bk., 165 Ill. 301. The statute (Hurd’s, 1899, Ch. 74, Sec. 6) provides, viz.: “ If any person or corporation in this State shall contract to receive a greater rate of interest or discount than seven (7) per cent, upon any contract, verbal or written, such person or corporation shall forfeit the whole of said interest so contracted to be received, and shall be entitled only to receive the principal sum due to such person or corporation.” It will be noted that in order to establish a violation of the statute there must have been a contract to receive a greater rate of interest than seven per cent upon any contract, verbal or written. The evidence shows that under the application for the first loan, the contract was to pay interest at six per cent per annum for five years on §27,500, and at the same rate for two years on §2,500, making an aggregate of interest for the whole term of §8,550, and a further sum by way of commissions at two and a half per cent on the total amount of the loan, or §750. On the second loan there was an agreement to pay two and a half per cent commissions, or §250, and on its renewal §80 commissions. There was also deducted from the first loan, §67.50 for insurance, which was not actually paid, and §87.50 for a guaranty policy. All these amounts aggregate §9,785, which is $190 less than seven per cent on the loan of §30,000 for the time which the respective notes aggregating that amount run. The loan of §5,000 and its renewal bore interest at the rate of seven per cent per annum, and it will thus be seen that by taking all the transactions as one, there was no contract which could be said to be usurious by its terms. In other words, the whole amount agreed to be reserved by Iinott, Tuttle & Lewis and Knott, Lewis & Co., by way of commissions, attorney’s fees, etc., including interest, did not exceed seven per cent per annum for the terms which the several loans were to run. But it is claimed by appellant that there was an agreement between him and the appellee Knott, that he, appellant, was not to pay any interest upon the $30,000 loan until he actually received the money on such loan, which was to be paid from time to time as required for the construction of the building. On this point there is a conflict in the evidence as between appellant and the witness Knott, the only witnesses on this subject, and we can not say that the finding of the chancellor that there was no usury is manifestly against the evidence. The master finds, and the evidence supports the finding, that the $30,000 loan was paid to appellant for his account and as by him authorized in various amounts from time to time from the date of the loan up to May 24, 1892, when the last paj'inent was made, and that the money was paid as the building progressed in construction, and that there was no usury in the notes and trust deed securing the $30,000. And in this connection it may be observed that, as said by Mr. Justice Craig in Boylston v. Bain, 90 Ill. 285, “An unlawful and corrupt intent is the very essence of a usurious transaction.” The fact that there was a delay of some six months between the date when the notes and trust deed were made and the last payment of money on the loan to appellant, would not necessarily make the transaction usurious, unless it appeared from the proof (and it does not) that this delay was intended as a cover for usury. That was a question to be determined by the master and the court from the evidence, which we have seen sustains the finding against usury. In Tyler on Usury, Ch. 19, p. 255, et seq., .the learned author has collected and reviewed numerous cases in which the courts have held that contracts were not usurious, among others (pp. 261-267) that of mortgages where interest was charged from the date of the mortgage, though the money was not actually paid over to the borrower until a time subsequent to that date. The cases hold that it is a question of intention of the parties from the evidence in each case. To a like effect is the case of Waterman v. Baldwin, 68 Ia. 262, in which it was held that the facts shown made the transaction in appearance usurious, but because there was an absence of proof showing a “ corrupt agreement on the part of any one to give or accept more than legal interest,” the court would not presume such an agreement. In Bevier v. Covell, 87 N. Y. 50-5, ay he re the whole amount of a loan was held by the agent of the lender for nearly six months, pending judicial proceedings to perfect title, and the borrower agreed to pay interest for this period, which but for the intent of the parties rendered the transaction usurious, the court held there was no usury because of the absence of proof of a corrupt intent. The claim that it was error to allow complainant Blair 31,000 for his solicitor's fees, is not, in our opinion, tenable, because, as Ave have seen, the trust deed securing the notes held by appellee Blair provides for the allowance of reasonable solicitor’s fees in case of foreclosure; and the master found, which finding was approved by the chancellor, that the sum of $1,000 ivas a reasonable fee, and the usual and customary amount paid to solicitors in Cook county, Illinois, for services such as those necessarily performed and to be performed on behalf of the complainant. The evidence on this point is someAvhat conflicting, but Avhen it is all considered in the light of our own experience in such matters, we can not say that it fails to sustain the finding of the master and court. Cohn v. Northwestern Mut. Life Ins. Co., 185 Ill. 340, and case cited. The claim that moneys deducted from the loan to pay insurance was not done by authority of appellant, is not sustained by the evidence. As we have seen, the trust deed provides that appellant should pay the insurance upon the buildings, and in case of his failure so to do, then that the trustee or the holder of the notes might, at his option, procure the insurance, and all moneys so paid for such'purpose were made so much additional indebtedness secured by the trust deed. There is no claim but that the insurance was procured and paid for by the trustee, except as to the sum of $67.50, which amount was allowed by the chancellor under the third exception of appellant to the master’s report. There was, in our opinion, no error in the refusal of the chancellor to dismiss the bill because Harriet B. Borland was not made a party thereto. There is evidence in the record tending to show that she was the owner of appellant’s note of $27,500, and that the complainant Blair was simply her agent in its purchase; but on the other hand, there is evidence that Blair was the legal owner and holder of the note. The note itself as offered in evidence is indorsed in blank by the appellant; and another indorsement, “ Pay to Merchants’ National Bank, Chicago, or order—H. B. Borland,” appears to have been stricken out by lines drawn through such indorsement; and it appears that the note came to the possession of complainant’s solicitor from Blair. We think the evidence sufficient to sustain the decree that at and prior to the beginning .of the suit said Blair was the legal owner and holder of this note and the trust deed securing it. Upon petition for a rehearing by appellees Knott • and Lewis, we have again considered the questions involved in the record so far as they affect these appellees, and have reached the same conclusion, but have modified our opinion because of a misapprehension on our part as to the exact condition of the record. Among other findings made by the master are the following : “I further find tha,t on the 10th day of May, 1892, the defendant, Weller D. Bishopp, executed his two promissory notes, each for the sum of twenty-five hundred ($2,500) dollars, payable to the order of himself, and by him indorsed in blank, due in twelve and eighteen months after date thereof, with interest at the rate of seven per cent per annum, the several interest installments being evidenced by seven interest notes or coupons, each for the sum of eighty-seven dollars and fifty cents ($87.50), executed by the same party. That to secure the payment of said notes and the interest thereon, the said defendant, Weller D. Bishopp (a widower), executed his trust deed, conveying to Henry A. Knott, as trustee, the premises described in the bill of complaint herein, together with other property, not now in question.” The master also found that this last named trust deed and notes were delivered to Knott, Tuttle & Lewis, who continued to be owners and holders thereof until they were canceled and paid on November 20, 1894, when appellant executed new notes for the sum of $4,000, which represented the balance due upon said two $2,500 notes; that $1,500 of the $4,000 represented in said notes dated November 20, 1894, was secured by a trust deed on premises not now in question; that appellant paid a commission of $250 to Knott, Tuttle & Lewis on the $5,000 loan and also a commission of $80 to Knott, Lewis & Co. upon the $4,000 loan; that the $30,000 and $5,000 loans were separate and distinct transactions, and in nowise affected each other, and that the “ $5,000 and the $4,000 loans were both usurious, for the reason that the interest reserved was for the full legal rate, which, added to the commissions charged and which must be regarded as so much additional interest, makes the interest rate greater than that allowed by statute.” The master, however, concluded that inasmuch as Knott, 'Lewis & Co., the holders of the $4,000 paper, was a different firm from Knott, Tuttle & Lewis, although the Knott & Lewis in each of the firms were the same, the firms must in law and in fact be regarded as different firms, and because the property securing the $4,000 loan was in part different from that securing the $5,000 loan, they were separate and distinct transactions, and the appellant should not be credited with interest and commissions on the $5,000 loan, because that was effectually ended and determined and a distinct transaction from the $4,000 loan. The master, therefore, only charged Knott and Lewis with the commissions and interest paid by appellant on the $4,000 loan. It is claimed by counsel for appellees that there is no evidence in the record to show that the $5,000 loan was usurious, but that all evidence in this regard was refused by the master on objection, and there is nothing left to sustain the master’s finding, and the appellant’s contention that this loan was usurious. The record shows that the evidence in question was ruled out by the master, but the decree of the court, as we haxe seen, recites that the cause xvas heard not only upon the pleadings, the master’s report and exceptions thereto, but “ proofs and exhibits introduced in evidence before the master.” The proofs and exhibits introduced before the master show that this loan xvas usurious, because the notes evidencing the loan bore interest at seven per cent per annum, and appellant paid, in addition thereto, $250 commissions to Knott, Tuttle & Lexvis, who made the loan and were the owners of the notes. The findings of fact of the master are full, show the usurious nature of this transaction, and are evidently based upon the excluded evidence, xvithout which they are no,t justified. The evidence also shows that the $4,000 loan xvas a renexval of. the $5,000 loan, after the payment of $1,000 thereon by appellant. No exception was taken by appellees Knott and Lexvis to the findings of the master of the facts on which he bases his conclusion that the $5,000 loan was usurious, their exceptions being confined solely to the $4,000 loan, which was a renewal of the $5,000 loan; and under the settled practice in this and the Supreme Court, they must be concluded by such findings. Besides, we think the statement in the decree in effect sets aside the ruling of the master excluding the evidence which shows the usury of the $5,000 loan. The decree says the case was heard upon proofs and exhibits introduced in evidence before the master. The evidence as to this loan was introduced before the master, was objected to, and the objection sustained. The evidence was returned into court, notwithstanding, together with the findings of fact bv the master, lío objection was made by appellees to such findings before the' master or exception before the court, and the chancellor might well have concluded that they acquiesced in the same because of the absence of any objection or exception in that regard, and especially might the chancellor have so concluded in view of the fact that appellant, by his eleventh, fourteenth and eighteenth exceptions, refers to the findings of the master that the $5,000 loan was usurious and objects to the report because the master failed to impose the statutory penalty of usury by charging Knott and Lewis with the payments of interest and commissions made by him on the loan" as against the principal thereof. It is said that the recital in the decree refers to evidence received, and can not mean that the court violated the rules of chancery practice and heard evidence in open court not considered by the master. We think the language of the decree is too plain to admit of such a construction, and that it was not error for the court to consider this evidence, which was before the master, though apparently ruled out at the time it was presented. The rule of practice referred to by counsel relates to evidence not introduced before the master and not reported to the court. It is claimed in the petition for rehearing that the exceptions of Knott and Lewis, which we have seen go only to the $4,000 loan, which was a renewal of a part of the $5,000 loan, are sufficient to challenge the master’s findings as to the latter loan. We think not, because an exception must be sufficiently certain to enable the court to know definitely and certainly the matter to which it refers. Thornton v. Com’l Loan Ass’n, 181 Ill. 456, and cases cited; Kinsella v. Cohn, 185 Ill. 208, and cases cited. We are therefore of opinion that the appellees Knott and Lewis should be charged with all payments by way of commission and interest made to them by appellant on the, $5,000 loan, as well as its renewal of $4,000. The evidence shows that the $5,000 loan was reduced by a payment of $1,000 made November 10, 1803, on the principal, and in addition to the credits allowed by the master and the court he should be further credited with all interest upon the $5,000 loan from Hay 10, 1892, up to the date of its renewal at the rate of seven per cent per annum, as well as the sum of $250 for commissions thereon, retained by Knott, Tuttle & Lewis. The case of Mitchell v. Lyman, 77 Ill. 525, does not in our opinion sustain the claim of counsel for Knott and Lewis, that the $4,000 renewal was not affected by the usurious nature of the original loan, of" which it was a renewal. Knott and Lewis took with full notice of, and were partakers in, the usurious $5,000 loan, and in our opinion should be subjected to the penalty of the statute, which deprives them of all interest. . As we have seen, there is the same provision in the trust deed securing the notes held by Knott and Lewis as to solicitor’s fees, that is contained in the trust deed secuilng the claim of the complainant Blair. The evidence supports the finding of the court and master allowing to Knott and-Lewis for the services of their solicitor the sum of $100. The decree of the Superior Court in favor of the appellee Blair is affirmed, but that part 'of it in favor of the defendants Knott and Lewis is reversed, with directions to the Superior Court to modify the same in accordance with the views herein expressed. The appellant will recover one-half his costs in this court from the appellees Knott and Lewis. Affirmed in part and reversed in part with directions.