Ballard v. Walker.

signed by the party to be charged therewith. The construction of the statute, in law and equity, must be the

same.

But from the lapse of near four years, before the plaintiff gave notice, that he insisted on the contract, and near five years before he offered to perform, we must presume the contract to have been rescinded. (2 P. Wms. 82. 9 Mod. 2.) Public convenience requires this construction. The circumstance that the defendant incapacitated himself, does not control the presumption.(b) On this ground, the defendant is entitled to judgment.

LEWIS, Ch. J. was of the same opinion.

Judgment for the defendant.

(6) By the French law, though the mere lapse of time within which a contract or condition is to be performed, is sufficient, on principles of natural justice, to dissolve an engagement; yet, by the usages of France, the party must be summoned before a magistrate, who, in default of his apppearance, or performance, will declare the agreement void; and such a summons and order of a judge seems necessary, according to the same usage, even where no time is limited, before there can be an extinguishment or rescission of the contract. But though no such sentence or order is obtained, yet, if a considerable time has elapsed, a presumption will arise, that the contract has been extinguished or rescinded by the tacit consent of the parties. (Pothier, Trait. des Oblig. No. 636; Trait du Contrat de Vente, No. 480. See 2 Kent's Comm. ed. 1844, 450, 510; Chitt. Cont. ed. 1848, 741, et seq.; Taylor v. Hillary, 1 Crompt. Mees. & Ros. 741; S. C. 1 Gale, 22; Palmore v. Colburn, 1 Crompt. Mees. & Ros. 65.

Wilkie v. Roosevelt.

[*66]

*WILKIE against ROOSEVELT.

Where A. made a note, payable to B., who endorsed it, merely for the accommodation of A., who passed the note to C. to raise money on it, by having the same discounted in the market, and C. discounted the note at a premium of three and one-fourth per cent. per month, and after deducting the discount, applied the proceeds to the payment of moneys lent by him to A. and, afterwards, in the course of his business, passed the note to D., who brought an action against B., the first endorser; it was held, that the note, though endorsed by B. for the accommodation of A., passed immediately from A. to C., and that the transaction in its inception was usurious, and the note therefore void.

THIS was an action of assumpsit, brought against the defendant, on a promissory note, made by Jacob Mark & Co. for 1366 dollars and 66 cents, dated 3d June, 1799, and payable in 90 days, to the defendant or his order.

At the trial of the cause, it was proved by C. W. Goodrich, that he had been in the practice of receiving notes from Mark & Co. for the purpose of raising money, by discounting them, in the market. That on receiving them, he credi ted them at the nominal sum, and afterwards accounted for the amount, deducting the discount. That he was limited as to the amount of discount to be paid by Mark & Co. That, under a general agreement to this effect, he received, on or about the 3d June, 1779, a note from them, for that purpose, corresponding in every particular with the present note, and which was endorsed by the defendant; that he could not positively say that the note in question was the same note he so received; but he had not, to his knowledge, received from them any other note, drawn and endorsed by the same parties, and of the same date and sum, and therefore fully believed it was the same; that this note was to be discounted, and the proceeds applied to the payment of moneys which had been lent by him to Mark & Co. and that, deducting the excess beyond legal interest on their money transactions, there would still remain some balance due to him. A memorandum or account of the note was

Wilkie v. Roosevelt.

then offered in evidence, which the witness, Goodrich, acknowledged he had delivered to Mark & Co. in which the proceeds of a note corresponding precisely with the present, were stated to be 1244 dollars, and must, therefore, have been attended with the discount of about 3 1-4 per cent. per month. Shortly after receiving the note, Good- [*67] rich delivered it to the plaintiff, at the instance, and

in presence, of one Peck, together with several other notes, in payment of the consideration money for the purchase of a vessel which the plaintiff had sold to Peck. The amount of the note was settled in account between Goodrich and Peck.

It was also proved by one Raymond, a clerk of Mark & Co. that they were in the habit of delivering notes to Goodrich to raise money, and that he did not know or believe, that any note was ever delivered to him by them, for any other purpose, excepting a note of 300 dollars.

This was the substance of the evidence, on which the judge charged the jury that the negotiation of the note, in the manner disclosed by the testimony, rendered it usurious and void; and that if they believed the note in question to be the same mentioned by the witness Goodrich, and referred to in the memorandum, they ought to find for the defendant. The jury, however, found a verdict for the plaintiff.

S. Jones, jun. for the plaintiff.

Morton, contra.

RADCLIFF, J. From the manuer in which the testimony of Goodrich is stated in the case, it is obvious that he was a reluctant witness. There can, however, be no doubt, upon the evidence, of the identity of the note. The witness, at the time, received precisely such a note, drawn and endorsed by the same parties, bearing the same date, for the same sum, payable at the same time, and he knew of no other of that description, and fully believed it to be the same. Although he seems cautiously to have repeated that he was not positive of the fact, he went as far as any witness could do, to identify the instrument. The verdict was, therefore, clearly against "evidence, and against the law, as directed [69]

Wilkie v. Roosevelt.

by the judge, and if that direction was right, the verdict ought not to prevail.

I consider this as a transaction existing immediately between Mark & Co. and the witness, Goodrich. The defendant, who endorsed the note, was a collateral security mere-ly, for the accommodation of Mark & Co. He neither paid nor received any value or consideration for the note. It passed immediately to Goodrich, for the purpose of being discounted at usurious interest, and to be applied to the payment of his own debt against Mark & Co. Receiving the note for his own benefit, he might elect to become the holder, and make the discount himself, or dispose of it to others. He chose the former mode, and in the character of holder, negotiated it, through Peck, to the plaintiff. He accordingly charged Mark & Co. with the discount, under colour, indeed, of its being made by another, but, in fact, made by himself. He, therefore, must be considered the lender, and Mark & Co. as the borrowers, at a usurious interest. The only remaining question, then, is, whether the form of the transaction shall protect the parties against the effect of a usurious. contract. If that were allowed, the statute, on every occasion, might be avoided, and would become a dead letter. The necessity of the case requires a different rule, and it has, accordingly, been uniformly held, that no such contrivance or shift can elude the statute. The case of Jones v. Hake, (2 Johns. Cases, 60,) in this court, was determined on the same ground. One Watkins there made a note to Hake, which was endorsed to him and others, without any consideration, and for the accommodation of Watkins merely It was then delivereed to Hake, as a broker, who procured it to be discounted by Herriman, at a usurious interest, and it afterwards came to Jones, an innocent holder. We decided, that although Watkins and Herriman were unknown to each other, it was to be considered as a contract im[*69] mediately between them. *So here, notwithstanding the note was made payable to Roosevelt, and endor sed by him, it was essentially an original contract between

Wilkie v. Roosevelt.

Mark & Co. on the one part, and Goodrich on the other and, as between them, was clearly founded on usury, and therefore void.

For these rersons I am of opinion that the direction of the judge was right and that the verdict ought to be set aside.

KENT, J. There can be no doubt, on this evidence, of the identity of the note. Though the witness, Goodrich, speaks with apparent caution and reluctance, the evidence appears to me to be irresistible, that the note he negotiated, and the note in question, were the same; and if the direction of the judge was right, the verdict is clearly against law and evidence, and ought to be set aside.

The defendant, who endorsed the note, must be considered merely as security, and as having lent his name for the accommodation of Mark & Co. He neither paid nor received any consideration for the note. It passed immediately. from Mark & Co. to Goodrich, for the purpose of being discounted, at a usurious interest, and to be applied to the payment of his own demand against Mark & Co. He received the note for his own benefit, and credited Mark & Co. with the proceeds, after making a usurious discount. Goodrich is, therefore, to be considered as the lender of the money. He took to himself the usurious discount. He passed the note to Peck, as the real holder, and for the amount of it, The transaction was, therefore, originally, and in its inception, usurious between Mark & Co. and Goodrich. The evidence of usury appears to me to be decisive and unequivocal, as between them. The account rendered by Goodrich to Mark & Co. in pursuance of their agreement, shows the rate of the discount. When a case appears as strongly marked as this, we have nothing to do with the [*70] policy of the defence. It is our duty to give effect to the statute, to cause it to be observed, and to suffer no contrivance or covin of the parties to evade it.