Merritt & Myers v. Benton

10 Wend. 116

• Court: New York Supreme Court
• Decided: January 15, 1833
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

There was no excess of interest included in the note of $332. The interest of $325,18, for 60 days and 3 days of grace, which the plaintiffs had a right to charge, amounted to $3,92, making .the principal and interest $329,10, to which add one pét' cent., the rate of exchange agreed on, and the sum of .$332,39, is given, from which deduct the amount paid by Petrie, and the balance is' $332,11, a sum exceeding the amount of the note, which therefore was not usurious as including a sum of interest greater than what is allowed by law. Nor was the including the rate of exchange in the note, per se, evidence of usury. The payees resided in New-York, the maker at the Little Falls, and for his accommodation the payees agreed to accept a note payable at Utica, near the residence of the maker. For this accommodation the maker agreed to pay, and such agreement is valid and upon sufficient consideration. Such an agreement may be a shift to cover usury, but there is nothing to warrant such a conclusion in this case. It is stated in the case that no question was made on the trial but that the rate of exchange allowed was the true rate between Utica and New-York.

The remaining .question is, whether the fees of protest were properly chargeable to the "defendant. As to this we have not been referred to any decided case, and we understand that the practice at the circuit is not uniform, though the fees of protest are generally allowed. It is an expence to which the holder of a note is subjected by reason of the default of the endorser, whose duty it is to pay the note at maturity, and it is right therefore that the holder should recover it. It may fairly be considered as a charge incident upon the endorser’s failure to perform his contract, and should be allowed to the plaintiffs in the assessment of damages.

New trial denied.