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Opinion of the Court, per Church, Ch. J.

and the intent of the parties. (Dunham v. Gould, 16 J., 367; Dunham v. Day, 13 id., 45; Suydam v. Bartle, 10 Paige, 94.) Upon the facts found, the transaction was clearly nsurious. (Bank of Salina v. Alvord, 31 N. Y., 473; Fanning v. Dunham, 5 J. Ch., 122; Steele v. Whipple, 21 Wend., 103.) The agreement being void for usury, defendant was answerable for conversion without demand. (Schroeppel v. Corning, 5 Denio, 236; 6 N. Y., 107.) Plaintiff, as purchaser, could clearly have alleged the invalidity of defendant's claim to the property on the ground of usury. (Bullard v. Raynor, 30 N. Y., 197, 200; Mason v. Lord, 40 id., 476; Berdan v. Sedgwick, 44 id., 626, 632; Thompson v. Van Vechten, 27 id., 568.) The cause of action was plainly assignable. (McKee v. Judd, 12 N. Y., 622; Smith v. New Haven R. R. Co., 28 Barb., 607; Bullard v. Raynor, 30 N. Y., 200.) Irrespective of the question of usury, defendant was liable for the conversion, having sold the property pledged, without demand, without notice, and without giving an opportunity to redeem. (Wilson v. Little, 2 N. Y., 443; Wheeler v. Newbold, 16 id., 392; Markham v. Jaudon, 41 id., 235.) In such case, a tender was unnecessary. (Dykers v. Alstyne, 7 Hill, 498.) By refusing to accept tender, defendant brought himself within the well-settled principle, that he cannot revoke his disclaimer, and reassert the claim of a pledgee as against the assignee of the pledgor. (Brown v. Vreedenbergh, 43 N. Y., 195, 200; Des Arts v. Leggett, 16 id., 582.) The measure of damages was the highest value of property between the time of conversion and the trial. (Markham v. Jaudon, 41 N. Y., 235, 245; Burt v. Dutcher, 34 id., 493; Wilson v. Matthews, 24 Barb., 295.)

Church, Ch. J. It is insisted by the learned counsel for the respondent that the referee's conclusion of fact, “that the consignment of the corn by Losee to Coe, at the time of the making of the loan, was for the purpose of evading the statute regulating the rate of interest for money,” is conclusive upon this court, and that we have no power to review it.

Opinion of the Court, per CHURCH, Ch. J.

This is true, with this qualification, that there must be some evidence to sustain the material facts found by the referee, upon which this conclusion is based. A finding of fact without evidence, or against the undisputed evidence, is an error in law. (Mason v. Lord, 40 N. Y., 476.) If there is any evidence to sustain all the facts found by the referee, his conclusion, if the facts are capable of his interpretation, is final, so far as this court is concerned. The referee has found that the defendant loaned to Simeon S. Losee the several sums mentioned in the complaint, and that “the condition of said loans was that Losee should pay Coe interest on the amount of money advanced at the rate of seven per cent per annum, and two and one-half per cent in addition thereto every sixty days during the continuance of the loans.” The only witness who testified to the contract was the defendant himself, who was called by the plaintiff, and his evidence on that subject is uncontradicted. He testified that he loaned the money to purchase the corn, and that the contract was that he was to receive interest for the use of the money, and two and onehalf per cent commission for taking care of, insuring and sell

corn, and that he was to carry it-for sixty days, unless, prior to that time, the price advanced to one dollar a bushel, in which case the corn was to be sold and the transaction closed. He stated explicitly that there was no agreement to carry the corn beyond sixty days, and that, so far from there being any contract for commissions after sixty days, there was no expectation that the loan would extend beyond that period.

There is no foundation in the evidence for finding that the contract was that the plaintiff agreed to pay two and a half per cent every sixty days during the continuance of the loans. This finding is not only unsupported by any evidence, but is directly antagonistic to it. There is no possible construction of the evidence that would warrant such a finding, and it may have had a material influence in characterizing the transaction as usurious. The difference between the contract found and proved is obvious. The contract as found implies a continuous loan, with a provision in advance for a rate of interest

ing the

Opinion of the Court, per CHURCH, Ch. J.

amounting to twenty-two per cent a year, fifteen per cent of which was for services largely fictitious. It has the appearance of a loan for an indefinite period, reserving an unlawful interest under the guise of commissions repeated at short intervals.

The contract proved is not an unusual one for consignors and factors to enter into. It appears more like a genuine transaction in the ordinary course of business. A large portion of the produce and manufactures of the country are moved and marketed under similar arrangements. The contract proved, if so intended, might be as usurious as the contract found; but the latter would, at least it might be, far more potent in determining whether the unlawful intent existed or not. In such cases the animus of the parties is the distinguishing feature of the transaction. We cannot say what influence this unwarranted construction of the contract had npon the judgment of the referee, that the two and a half per cent, called commissions, was, in reality, a cover for additional interest, and that the transaction was designed as an evasion of the usury laws. It is enough that it may have had some influence. If the action had been tried before a jury, and the judge had put this construction upon the contract or instructed the jury that it was capable of such a construction, the court, upon a proper exception, would have set aside the verdict. The same principle, although in a different form, applies here. The contract found is materially unlike the one proved. Upon the contract thus found, and other facts, the referee infers an intent to evade the usury laws. This was error available in this court. It is unnecessary to determine whether usury could be predicated upon the facts proved. It may be conceded that it could, but it was predicated upon facts in part not proved; and as we cannot determine whether they might not have had a controlling influence, the judgment must be reversed. Where a referee finds various facts, from which he finds an intent to evade the usury laws, and any of the material facts are unsupported by any evidence or are against evidence, it is an error in law

Opinion of the Court, per CHURCH, Ch. J.

which is fatal to the judgment. The referee was justified, from expressions to be found in the recent decisions of the courts in this State, and, perhaps, from some of the decisions themselves, in giving the plaintiff the benefit of the highest market price between the time of conversion and trial. But whatever may be said of the propriety of such a rule, in any case not special and exceptional in its circumstances, it should not be applied in a case like this. The price was fixed a year and a half after the original action was commenced. There is not the slightest evidence tending to show that the plaintiff or his assignor contemplated or desired to keep the corn. On the contrary, it affirmatively appears that the intention was to sell it when it reached one dollar a bushel ; and such was the agreement, while the price allowed was one dollar and forty-five cents. Besides, the evidence shows that it would have been difficult, if not impossible, to have preserved it until the time when the price was fixed. The element of bad faith does not exist. The defendant supposed he made a valid contract, whatever legal construction may be put upon it; and yet the recovery of $100,000 results in the loss of the $60,000 originally loaned and $52,000 besides. This latter sum is transferred from the defendant to the plaintiff, not because the latter has sustained any such loss by any act of the former, but in obedience to a supposed arbitrary rule established in such cases. It is sufficiently inconsistent with genera principles to allow a party to recover for possible and contingent damages in any case; but I have seen no decision holding that a party can recover damages for fictitious losses, which the evidence affirmatively shows he did not or could not sustain. An unqualified rule, giving a plaintiff in all cases of conversion the benefit of the highest price to the time of trial, I am persuaded cannot be upheld upon any sound principle of reason or justice. Nor does the qualification suggested in some of the opinions, that the action must be commenced within a reasonable time and prosecuted with reasonable diligence, relieve it of its objectionable character. Without intending to discuss the question at this time, we

Statement of case.

deem it proper to say that, while the decisions and opinions of our predecessors will receive the utmost respect and consideration, we do not regard the rule referred to so firmly settled by authority as to be beyond the reach of review whenever an occasion shall render it necessary.

It must suffice now to decide that the rule, as applied in this case, was erroneous.

There are other questions in the case, bnt as they may not arise upon another trial in the same form, it is unnecessary to discuss them. The judgment must be reversed and a new triai ordered, costs to abide the event.

All concur.
Judgment reversed.

63 416

EGBERT CRIPPEN et al., Appellants, v. BURTON G. Morss,


49 117 49 122

63 98

49 63 150 149

The acts and declarations of one of several owners of a water-power in the

presence and hearing of the others as to their relative rights is com

petent evidence, as against one claiming under either. Where a witness, in answer to a proper question which is objected to, gives

testimony, not called for by it, which is incompetent, but no objection is made to the answer or motion to strike it out, it cannot be objected to

upon review. One tenant in common cannot, by his sole act, create an easement in the

premises held in common. Nor can a tenant in common, who owns other premises in severalty, so use the last as to acquire or exercise, for the benefit thereof, an easement in the property held in common ; and he cannot, by grant or by operation of an estoppel or otherwise, confer upon another rights and privileges which he does not himself possess. (Lampman v. Milks, 21 N. Y., 505, distinguished.) Where, therefore, a tenant in common, in a grant of premises held by him

in severalty, has attempted to create an easement in the premises held in common, a subsequent grantee of all the tenants in common is not estopped by the fact of his succeeding to the interest of the one who granted the easement from asserting, as a grantee of the co-tenants, the invalidity of the grant of the easement, and as against him it is void.

(Argued February 27th, 1872; decided April 2d, 1872.)

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