Drake v. Lowry

Baldwin, C. J. It is maintained that the defendant, Lowry, was the individual debtor of Cook and Sargent on the account kept with them in the name of the Henry County Coal Company; that the account was thus kept for his own convenience; and that, as the money was bor [127] rowed for him, and as he was the party privy to the contract, he had the right to interpose the plea of usury, that if sustained- the defendant had paid more than was justly due; and that the judgment of the court should be in his favor. Whether the defendant or the coal company was the actual debtor of Cook and Sargent, was purely a question of fact, for the court acting as a jury to determine. The coal company was a corporation having full authority to contract, to sue, or to be sued. It acted through the defendant, as its president. The account on the bank book was kept against said company, in its corporate name. The check books of both defendant and coal company are before us, showing a separate account against each at the same time. The money was advanced to the company in its corporate name, and drawn out upon checks signed by the defendant, as its president. But the most satisfactory evidence on this point is that of the defendant, who testifies that he settled with the coal company; that in his settlement the company paid him all the interest which he allowed to Cook and Sargent, and for which he had given the notes, upon one of which he is now sued. The defendant could not interpose this defense to. a contract made between other parties, and to which he was not privy. It is claimed that the court erred in the amount of the judgment it rendered in favor of the state; that the note was the contract sued upon, and the state could recover only from the date of the note. ITpon the authority of Campbell v. McHarg, 9 Iowa, 355; Smith, Twogood & Co. v. Coopers & Clarke, Id., 376, the court correctly found that the state could recover the ten per cent from the date at which the money was borrowed. A mere change in the character of indebtedness, as by changing the account to a note, did not relieve the contract of its usurious taint. Affirmed.