COOK, J.
The action,below was.forthe fo.reclpsur.e'of a.chattel mortgage given ■¡by.Jjohn A>. Dellenbaugh-and Sarah A.'.Dellenbaugh,--his ¡^yifpy to-Fire-i; stone .Brothers,; of; yhoni; S.oloinpn J, Firestone/is the^upcessoiy tp^seenre .¡the payment of; several-promissqry notes^-all Qf the^arne character — of ;which¡the;foJlqwing ista.-copy oft®ne of-the/nutes-ii.-* ,i ,v ^
‘^Ñew Lisbon, t)hio,'February "Í,' 1888'.
“On op before-year, after .date .we. or..either of us promise tp ..pay Firestone.Brothers .or. .order..at,,,the.banking house of Firestone , Brothers, New. J/isljon,. Ohiq, ,the fum of $5.00 .with,8. per cent, interest to be paid annually,^. Interest and principal aiftempiaturity to..beaiy8 per centcannual interest to be paid'Semiannually.”,1,,, .• . ,- , . .
éfetw'eéii"Í888',"án'd 'the' tirite, of bringing1 ále"'súit '‘sofne plincipdl and a iarge aiii'ouiit of interest'hád been 'páid upoh the notes. The manner of'computing the interest aítéh nfktürítf1 by consent of both parties to compute interest upon the prmeipár at '8 per cent, payable semi-was "annually; anddhe interest up ón thó'-in4éf,ést’bvierduéJupfei lire" noté ■ uir-[3]*3paid at 8 per cent payable semiannually, and upon the interest upon interest which was unpaid at 6 per cent, simple interest, up to the time of computation and settlement. " - (
The question made by the defendants before the referee in ascertaining the amount due upon the ipptes, was, that the notes were usurious and that only simple interest at 6 per cent was all that could be collected upomthe notes/' --The ¡referee held, against? the 'contention of the defendant, that the notes were not usurious; that the manner that the parties had computed the interest' niád'é in their various settlements, was correct and found for the plaintiff in the sum of about $12,000.
Upon'"his .report’s being made' exceptions were taken and the court confirmed the report in every respect except upon the finding that the notes were not usurious, and" held that they were; and rendered a judgment and decree for about $6,000 instead of $12,000. The question made upon error is, Who was right, the referee'or the court?
Revised Statute 3179 (Lan. 5095)., which was in force when the contract was made provides:
“The parties to a bond, bill, promissory note, or other instrument of writing for the forbearance or payment of money at- any future time, may stipulate therein for the payment of interest upon the amount thereof at ¿ny rate not exceeding 8 per cent per annum, payable annually. ”
While it would "seem from the text of the statute that the intent of the legislature was, that money should .in-no case earn. morg. than 8 per cent per year, yet it is now well settled that such is not the fact, and that although the statute provides that interest may be reserved at 8-per cent “per. apnum, payable.:annually,”, the words “payable annually” have no effect in qualifying, the language of the statute whatever, and that it should be ‘re,ad the same as if the words were eliminated. Cook v. Courtright, 40 Ohio St. 248 [48 Am. Rep. 681].
In that case it was íield that under the act of May 4, 1869 (66 O. L. 91; Rev. Stat. 3179; Lan. 5095):
“A promissory note stipulating for the payment of the principal at a future time,‘with interest therein at 8 per centum per''annum, payable semiannually until'"paid’ is no,t usurious.” '
In the opinion, on page 251,' it is said:
. “Tippler a'contract to,' pay ,8'pef .ceptum per'anpunp,páyable semiannually,' upon a given principal, ¡ the interest to be paid, upon that principal, is precisely the same as under a contract to pay *8'per centum per annum payable annually, ’ -upon" the 'same principal! If the installment'of interest falling due at the end of six months should not- be [4]*4paid, and the law would permit interest to run upon it at 6 per cent until paid, no part of that 6 per cent interest would be interest upon the principal named in the note. And such interest upon interest, if collectible, would not form any part of the interest ‘stipulated for.’ If collectible at all it would be because of the other sections of the same statute.
“The third section applies to ‘all cases other than those provided for in the first and second sections of this act. ’ The first section we have ■quoted in full. The second applies to judgments, decrees and orders Tendered upon any contract made under the first section.' As the first section relates only to contracts for interest upon the principal, a suit for interest upon overdue interest may be considered a case ‘other than’ those provided for by said section, and is therefore collectible under said third section. And, if separately suéd for, the judgment obtained would draw interest under the fourth section.”
In the case of Taylor v. Hiestand, 46 Ohio St. 345 [20 N. E. Rep. 345], it is held:
“A promissory note bearing interest at the rate of 8 per cent per .'annum, payable semiannually, is not usurious, although it stipulates that the semiannual installments of interest shall bear interest at the same rate if not paid when due.”
And in the opinion, in referring Cook v. Courtright, supra, it is said, page 347:
“This statute was under consideration in Cook v. Courtright, 40 Ohio St. 248 [48 Am. Rep. 681], and the court there held, first, that a promissory note is not usurious though it contain a stipulation for the semiannual payment of interest at the rate of 8 per cent per annum; and second,' that the semiannual installments of interest will bear interest at the rate of 6 per cent per annum from the day they fall due, but form no part of the interest stipulated for ‘upon the amount of the note. ’ This decision has become a rule of property, and we see no sufficient reason to disturb it now; and it furnishes a rule by which the rights of parties to this action can be ascertained. It establishes the doctrine that the payee of a promissory note may receive at the end of the year, as interest, a sum of money equal to 8 per centum on the face of the note, with 6 per centum for sis months on the first installment of interest added thereto. Therefore, the fact that it is apparent on the face of a promissory note that it will earn in any one year, as interest, a sum of money greater than 8 per cent on the principal sum, will not necessarily render it usurious. The court says in that connection, Cook v. Courtright, supra, ‘No part of that 6 per cent interest [5]*5would be interest upon tbe principal named in the note. ’ This is equally true of the note here, and the only difference in this respect is, that in that case the unpaid installment bears interest at 6 per cent and in this case at 8 per cent. In either case the promissory note on its face earns more than 8 per cent per annum on the principal.
“It is said, however, that in the case here, there is an expressed stipulation for interest on the several installments of interest as they respectively fell due, whilst in the case of Cook v. Courtright, supra, there was none, but that the installment bore interest by operation of law; and this distinction seems to have been in the mind of the judge who wrote the opinion in that case; but it does not appear to be the principle on which the case turned.
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COOK, J.
The action,below was.forthe fo.reclpsur.e'of a.chattel mortgage given ■¡by.Jjohn A>. Dellenbaugh-and Sarah A.'.Dellenbaugh,--his ¡^yifpy to-Fire-i; stone .Brothers,; of; yhoni; S.oloinpn J, Firestone/is the^upcessoiy tp^seenre .¡the payment of; several-promissqry notes^-all Qf the^arne character — of ;which¡the;foJlqwing ista.-copy oft®ne of-the/nutes-ii.-* ,i ,v ^
‘^Ñew Lisbon, t)hio,'February "Í,' 1888'.
“On op before-year, after .date .we. or..either of us promise tp ..pay Firestone.Brothers .or. .order..at,,,the.banking house of Firestone , Brothers, New. J/isljon,. Ohiq, ,the fum of $5.00 .with,8. per cent, interest to be paid annually,^. Interest and principal aiftempiaturity to..beaiy8 per centcannual interest to be paid'Semiannually.”,1,,, .• . ,- , . .
éfetw'eéii"Í888',"án'd 'the' tirite, of bringing1 ále"'súit '‘sofne plincipdl and a iarge aiii'ouiit of interest'hád been 'páid upoh the notes. The manner of'computing the interest aítéh nfktürítf1 by consent of both parties to compute interest upon the prmeipár at '8 per cent, payable semi-was "annually; anddhe interest up ón thó'-in4éf,ést’bvierduéJupfei lire" noté ■ uir-[3]*3paid at 8 per cent payable semiannually, and upon the interest upon interest which was unpaid at 6 per cent, simple interest, up to the time of computation and settlement. " - (
The question made by the defendants before the referee in ascertaining the amount due upon the ipptes, was, that the notes were usurious and that only simple interest at 6 per cent was all that could be collected upomthe notes/' --The ¡referee held, against? the 'contention of the defendant, that the notes were not usurious; that the manner that the parties had computed the interest' niád'é in their various settlements, was correct and found for the plaintiff in the sum of about $12,000.
Upon'"his .report’s being made' exceptions were taken and the court confirmed the report in every respect except upon the finding that the notes were not usurious, and" held that they were; and rendered a judgment and decree for about $6,000 instead of $12,000. The question made upon error is, Who was right, the referee'or the court?
Revised Statute 3179 (Lan. 5095)., which was in force when the contract was made provides:
“The parties to a bond, bill, promissory note, or other instrument of writing for the forbearance or payment of money at- any future time, may stipulate therein for the payment of interest upon the amount thereof at ¿ny rate not exceeding 8 per cent per annum, payable annually. ”
While it would "seem from the text of the statute that the intent of the legislature was, that money should .in-no case earn. morg. than 8 per cent per year, yet it is now well settled that such is not the fact, and that although the statute provides that interest may be reserved at 8-per cent “per. apnum, payable.:annually,”, the words “payable annually” have no effect in qualifying, the language of the statute whatever, and that it should be ‘re,ad the same as if the words were eliminated. Cook v. Courtright, 40 Ohio St. 248 [48 Am. Rep. 681].
In that case it was íield that under the act of May 4, 1869 (66 O. L. 91; Rev. Stat. 3179; Lan. 5095):
“A promissory note stipulating for the payment of the principal at a future time,‘with interest therein at 8 per centum per''annum, payable semiannually until'"paid’ is no,t usurious.” '
In the opinion, on page 251,' it is said:
. “Tippler a'contract to,' pay ,8'pef .ceptum per'anpunp,páyable semiannually,' upon a given principal, ¡ the interest to be paid, upon that principal, is precisely the same as under a contract to pay *8'per centum per annum payable annually, ’ -upon" the 'same principal! If the installment'of interest falling due at the end of six months should not- be [4]*4paid, and the law would permit interest to run upon it at 6 per cent until paid, no part of that 6 per cent interest would be interest upon the principal named in the note. And such interest upon interest, if collectible, would not form any part of the interest ‘stipulated for.’ If collectible at all it would be because of the other sections of the same statute.
“The third section applies to ‘all cases other than those provided for in the first and second sections of this act. ’ The first section we have ■quoted in full. The second applies to judgments, decrees and orders Tendered upon any contract made under the first section.' As the first section relates only to contracts for interest upon the principal, a suit for interest upon overdue interest may be considered a case ‘other than’ those provided for by said section, and is therefore collectible under said third section. And, if separately suéd for, the judgment obtained would draw interest under the fourth section.”
In the case of Taylor v. Hiestand, 46 Ohio St. 345 [20 N. E. Rep. 345], it is held:
“A promissory note bearing interest at the rate of 8 per cent per .'annum, payable semiannually, is not usurious, although it stipulates that the semiannual installments of interest shall bear interest at the same rate if not paid when due.”
And in the opinion, in referring Cook v. Courtright, supra, it is said, page 347:
“This statute was under consideration in Cook v. Courtright, 40 Ohio St. 248 [48 Am. Rep. 681], and the court there held, first, that a promissory note is not usurious though it contain a stipulation for the semiannual payment of interest at the rate of 8 per cent per annum; and second,' that the semiannual installments of interest will bear interest at the rate of 6 per cent per annum from the day they fall due, but form no part of the interest stipulated for ‘upon the amount of the note. ’ This decision has become a rule of property, and we see no sufficient reason to disturb it now; and it furnishes a rule by which the rights of parties to this action can be ascertained. It establishes the doctrine that the payee of a promissory note may receive at the end of the year, as interest, a sum of money equal to 8 per centum on the face of the note, with 6 per centum for sis months on the first installment of interest added thereto. Therefore, the fact that it is apparent on the face of a promissory note that it will earn in any one year, as interest, a sum of money greater than 8 per cent on the principal sum, will not necessarily render it usurious. The court says in that connection, Cook v. Courtright, supra, ‘No part of that 6 per cent interest [5]*5would be interest upon tbe principal named in the note. ’ This is equally true of the note here, and the only difference in this respect is, that in that case the unpaid installment bears interest at 6 per cent and in this case at 8 per cent. In either case the promissory note on its face earns more than 8 per cent per annum on the principal.
“It is said, however, that in the case here, there is an expressed stipulation for interest on the several installments of interest as they respectively fell due, whilst in the case of Cook v. Courtright, supra, there was none, but that the installment bore interest by operation of law; and this distinction seems to have been in the mind of the judge who wrote the opinion in that case; but it does not appear to be the principle on which the case turned. The judge there must have referred to an express stipulation, for surely the interest on the installment in that case was the result of the stipulation for the semiannual payment of interest. v If there had been no such stipulation, there could have been no interest on interest. And it cannot be important whether the interest on the installments resulted from an express stipulation for its payment, or necessarily, by operation of law, from another stipulation; in either case the result was,apparent on the face of tbe paper.”
It is said that the note in this case differs in an essential particular from the notes that were before the Supreme Court in the cases referred to, in that it provides “interest and principal after maturity to bear 8 per cent annual interest to be paid semiannually”; that this provision makes it a compound interest-bearing note. We do not think so. There is no distinct provision in the note for rests at stated periods at which time the interest should be added to the principal and to bear interest in the same manner as the principal sum; and if a compound interest-bearing note at 8 per cent in this state is usurious, about which there might be some doubt, this is not such a note and we can see no substantial difference between this note and ones referred to. Especially the note in the case of Taylor v. Hiestand, supra.
In the case of Cook v. Courtright, supra, it was said that if interest could be collectible at all on the semiannual payments of interest, only 6 per cent could be collected and that by operation of law, under Sec. 3 of the statute which is now Rev. Stat. 3181 (Lan. 5097), but that was doubted in the case of Taylor v. Hiestand, supra, and it was held that a note of 8 per cent per annum payable semiannually is not usurious, although it stipulates that the semiannual installments shall bear interest at 8 per cent if not paid when due.
What material difference is there under these decisions between interest bearing interest at 8 per cent payable annually and payable semi[6]*6annually? In either ease the interest upon the interest could only bear simple interest at‘6, per cent, which was charged and paid in this case. Anketel v. Converse, 17 Ohio St. 11 [91 Am. Dec. 115].
Indeed, what difference is there between the note specifying that the note shall bear interest at 8. per cent payable sémíánnuálly and that the interest sháíLbear interest at, 8 per cent payable semiannually? In eifher case’ more than 8 per cent per annum payable annually' is charged for the use of the money. ^.' '. . i .
In 16 Am. & Eng. Enc. Law (2 ed.) 1085,, in summing up the, authorities upon this question, it is said:
“But it is believed to, be. a safe statement, as a loose general rule, that interest on interest at a rate not greater than the statute permits should mover be held .usurious where payment of the interest installments. was actually contemplated on the dates fixed, although the aggregate of interest op. interest would, if contracted for on the original principal, exceed the rate allowed by law.” , • . .
"We-are of opinion that the referee was right and that the court ■erred in sustaining the exception -to his, report. Judgment of court of common pleas will be reversed and, this court rendering the judgment the common pleas should have rendered, the report of the. referee is confirmed.