Richards v. Bippus

Mr. Justice Shepard delivered the opinion of the Court: 1. There was no error in refusing the defendant’s prayer for an. instruction founded on his first plea. Plaintiff’s direct evidence that the money lent to defendant was her separate property, underived by gift or conveyance from her husband, is assailed as -insufficient because it appears that it was obtained from the sale of her land in Georgia. The contention is, that in the absence of proof of the law of Georgia relating to the property rights of married women, the presumption is that the rule of the common law prevails there; and that, consequently, the proceeds of the sale of her land became the property of her husband. And it is further contended that, if after receiving the money the husband acquiesced in the wife’s claim to it, it then became hers by his gift of conveyance, and was not her separate property under the statute conferring Tipon her the right to sue and be sued concerning the same in her own name as if she were unmarried. R. S. D. C., Secs. 727, 729. The positive, and wholly uncontradicted, statement of the wife that the money lent to the defendant had not been ac [299] quired by gift from ber husband, but was ber separate property in Georgia, was probably sufficient indirect proof, to prevent tbe raising of tbe mere presumption of tbe existence of tbe common-law rule of property in respect of married women in that State; sucb presumption being one of evidence merely and indulged only in tbe absence of all evidence to tbe contrary. Tbe defendant, however, was in no situation to make sucb a defense to tbe action, and tbe determination of bis conten tion is not necessary. At tbe time be borrowed tbe money, married women were authorized to contract and to bring suits concerning their separate property as if they were unmarried, and this right of separate property has been widened by the act of June 1, 1896. 29 Stat. 193. Defendant contracted with plaintiff to borrow tbe money as ber separate property, and bis note promised to pay ber and not ber husband. It does not, therefore, lie in bis mouth to deny her capacity to sue thereon for bis default, for the. sole purpose of defeating an action to which be has no defense whatever. Credits for tbe only payments alleged to have been made have been allowed in full, and be has no pretense of set-off or counterclaim against ber husband. 2. We think that tbe plea of usury was sustained by tbe plaintiff’s own evidence. It appears that she intrusted $300 to ber husband to be lent to tbe defendant, and that tbe rate of interest obtained! was tbe highest that could be lawfully contracted for in tbe District of Columbia. Comp. Stat. D. C., p. 283. In addw tion to this, be contracted for a bonus of $50, to be paid by tbe defendant for obtaining tbe loan. Now, bad be received tbis bonus in cash, or taken a separate obligation therefor payable to himself, and bad received for the plaintiff a note for $300 only and delivered tbe same to her without ber knowledge or approval of tbe exaction for bis own exclusive benefit, her right to recover both the principal and interest of ber note would not be impaired. Call v. Palmer, 116 U. S. 98, 102. [300] Instead of conducting the affair in the manner aforesaid, he included the bonus in the note with the knowledge and consent of the plaintiff, who promised to pay him the same out of the proceeds of the note when collected. The doctrine established by the weight of authority is this: The note or obligation is affected with usury if the principal makes the loan, knowing that his agent has exacted a bonus or commission, though for his own sole benefit, which, with the interest payable to the principal, would amount to more than the rate permitted by law. 27 A. & E. Encyc. Law, 1006, 1007, and cases cited. See also Fowler v. Eq. Trust Co., 141 U. S. 384, 405. Under the statute regulating interest and punishing usury, and the rule that prescribes the running of the legal rate after maturity, all that the plaintiff was entitled to recover was the principal sum of $300, with interest at the legal rate after the termination of the contract rate, less the credits which she had admitted. Comp. Stat. D. C., p. 283, Sec. 3. As the judgment follows the verdict, which separates the findings for principal and interest as aforesaid, there is no ■occasion for reversing it and remanding the case for a new trial, provided the appellee will remit the interest as contracted for from date to maturity. The judgment will, therefore, be affirmed with costs, provided the appellee shall within ten days file with the clerk of this court a remittitur of the aforesaid part of said interest. It is so ordered. On May 29, 1901, Mr. Prentiss for the appellant, filed a motion for a rehearing “ upon the question of the effect of usury as to forfeiture of interest and amount recoverable and the question of costs, or for a reconsideration of the condition imposed upon the appellee and the modification of the same so as to require her to enter a remittitur of all the interest, with costs to the appellant.” In support of this motion he cited, as to the interest: R. S. D. C., Sec. 715; Stark-weather v. Prince, 1 MacA. 144; Sullivan v. Snell, 1 MacA. 585; R. S. D. C., Secs. 713 and 829; R. S. U. S., Sec. 966; [301] Farmers’ Bank v. Dearing, 91 U. S. 29; Brown v. Marion National Bank, 169 U. S. 416; Carter v. Carusi, 112 U. S. 478; Stockham v. Munson, 28 Ill. 51; Bank v. Davis, 108. Ill. 633; Bressler v. Harris, 19 Ill. App. 430; Payne v. Waterson, 16 La. An. 239; Succession of Rhoton, 34 La. An. 893; Chaffee v. Heyner, 31 La. An. 594. As to the costs, lie contended that “ Inasmuch as the-judgment in the court below carried interest at 10 per cent, for six months and 6 per cent, for six years, amounting-to about $125, if the appellee be required to remit the whole interest the appellant will have been substantially successful on appeal and should be allowed his costs as was done inj Bressler v. Harris, supra, for the appellant could not have appealed from part only of the judgment; or the costs should be divided, as was done in Denison v. Lewis, 5 App. D. C. 328, and Ross v. Fickling, 11 App. D. C. 442.”