Utterback v. Wilhoit

11 Ky. Op. 507, 3 Ky. L. Rptr. 622, 1882 Ky. LEXIS 171

• Court: Court of Appeals of Kentucky
• Decided: February 21, 1882
• Status: Published

Opinion

Opinion by

Judge Pryor:

The case of Johnson v. Utley, 79 Ky. 72, settles the question here. There was no law enforcing the penalty of forfeiture at the time the action was instituted and therefore the appellant was entitled to recover his debt with legal interest.

The parties had the right under the law at the time this note was executed to agree in writing to pay eight per cent, interest on the principal sum, but in this case the agreement by which the appellee undertook to pay eight per cent, interest was erroneous, that is, two per cent, interest was paid in advance in addition to the eight per cent, agreed to be paid by the terms of the note, and by reason of this the entire transaction is tainted with usury, and the appellant can only recover the lawful interest, that is, such interest as if no rate had been agreed on. This opinion is substituted for the one already rendered, as it is manifest that only six per cent, interest should be allowed.

Judgment reversed and cause remanded.