Kelley v. Lindsey

73 Mass. 287

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Dewey, J.

1. We perceive no objection to the admission of the testimony relied upon by the plaintiff to establish the agency of Coffin and his authority to bind the defendant, nor to the instructions given as to the nature of the evidence upon which a general authority to borrow money for his principal might be found by the jury.

2. We are of opinion that if Coffin had authority to borrow money on account of the defendant, to be used in the transaction of his business, and if in the exercise of such agency he borrowed money at a greater rate of interest than six per cent, per annum, the defendant would be liable on a contract for such borrowed money, after deducting from the same three times the unlawful interest paid, as would be the rule in other cases of payment of usurious interest; and such liability would attach to the defendant, to the same extent as if he had made the loan himself.

3. The remaining instruction was objectionable, and should not have been given. If Coffin had no authority to borrow money on account of the defendant, to expend in his business and to pay his debts, the money advanced for that purpose, though so applied, created no debt against the defendant. No one can thus make himself a creditor of another by the unsolicited payment of his debts; and it is not enough to create a liability, that the defendant had the benefit of the money, by reason of its being expended in his business or in the payment of his debts. There must have been shown some authority to make such advance or payment of money, proceeding from the defendant, in addition to the mere fact of its being applied for his benefit, in order to charge him with the same in a suit at law. For this reason, the court are of opinion that the verdict must be set aside and a New trial had.