Nichols v. Osborn

41 N.J. Eq. 92

• Court: New Jersey Court of Chancery
• Decided: February 15, 1886
• Status: Published

Opinion

The Chancellor.

The proof is that Osborn, the mortgagor, applied to Bobert E. Chetwood, a counselor-at-law, for a loan of $6,000, which the latter had advertised. The money belonged to William E. Nichols, the complainant’s father. Osborn obtained the loan and agreed to pay Chetwood ten per cent, for his commissions for making it. The mortgage was given for $6,000. Chetwood paid Osborn only $5,400. Nichols is dead, and the complainant holds the mortgage by assignment from Nichols’s executors. Osborn, in his answer, sets up the defence of usury.

The proof does not sustain it. According to his own testimony, Osborn agreed to pay Chetwood ten per cent, or $600 for his commisssions, and there is no evidence whatever that Nichols received any of that money, nor that he did not pay over to Chetwood the whole of the $6,000. There is no evidence to connect him in any way with the bargain for commissions or to show that he had even any knowledge of either branch of the transaction. It is true Chetwood says he only received two per cent, for his commissions, and does not deny that the agreement was that he was to receive ten per cent., and admits that he paid Osborn only $5,400. But whether he received the rest of the ten per cent, and paid it to Farnham, who also was the lender’s agent in making the loan, does not appear. Nor does it appear whether Farnham got it from the lender directly or not. Farnham is dead. Osborn’s testimony is that Chetwood retained $600 for his commissions, and that that was in accordance with the agreement between them. There will be a decree for the complainant for principal, interest and costs.