More v. Howland

4 Denio 264

• Court: New York Supreme Court
• Decided: April 15, 1847
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

The plaintiffs sold their guaranty or credit to the defendants, for a commission of two and a half per cent, on securities payable in four months. The rate of compensation is a matter of no legal importance; for if the plaintiffs had a right to charge any thing, they might charge whatever sum the defendants would agree to pay. There was no negotiation, nor agreement, for or about a loan; nor was any loan ever made. It was a sale of credit, and nothing more. The defendants may have made a bad bargain ; but there was no usury in the case. (Ketchum v. Barber, 4 Hill, 224.) It is easy enough to call the transaction a loan; but that is only giving it a wrong name for the purpose of bringing the case within the statute of usury. That, like every other statute, ought to be rigidly enforced, whatever may be thought of its policy; but we cannot make it a universal remedy for bad bargains without usurping the power of legislation. As the law now stands, a man has as good a right to sell his credit ás he has to sell his goods or his lands ; and if he deal fairly, he may take as large a price as he can get for either of them.

This may be a fit .occasion to say, that I have either been misreported in Ketchum v. Barber, (4 Hill, 236,) or else I was very unfortunate in expressing my meaning. There was room for a question in that case whether the referee had drawn the proper conclusions of fact from the evidence which was laid before him; and that was the only doubt I ever felt about the case. And in my judgment, he did not go so far in holding that there was a sale, and no loan, as the court of errors did in holding the same thing, though about a different transaction, in Rapelye v. Anderson, (4 Hill, 472.) If the referee in Ketchum v. Barber was right in finding that the first transaction was the sale of endorsements, and that there was no loan, he was clearly right in holding that there was no usury.

In the case now before us I can see nothing like usury; and m that opinion my brother Jewett concurs.

Beardsley, J. dissented.

Motion denied.