After giving due consideration to the arguments made on rehearing granted, I am still of *Page 96 the opinion that the decree of the court below should, be affirmed.
The report of the Special Master, which was approved by the Circuit judge, gives a very fair summary of the evidence and the salient points of law involved. Said report reads in part as follows:
"At the outset the Master is frank to state that whether or not usury has been established is a very close question. Following a certain line of decisions the answer could well be in the affirmative though by following a line of other decisions it could as well be in the negative.
"To sustain the usurious nature of the transaction the defendant, Julian J. Beach, testified substantially as follows:
"That in November or December of the year, 1928 he made arrangements with the Dade County Security Company wherein he could take up his three mortgages, upon which a total balance of $14,174.06 was then due, by paying in cash the sum of $7,087.03 and in stock the like sum of $7,087.03. That, at the time, the property was encumbered by a second mortgage in favor of E.A. Waddell upon which he owed a balance of $709.80.
"That shortly thereafter, through Mr. Chase, a local real estate broker, he contacted plaintiff, Andrew Kirk, from whom he requested a loan of $10,000.00, telling him that out of the proceeds of such loan he could take up the three Dade County mortgages, and, by adding a little cash to the $1,500.00 worth of Dade County stock owned by witness, also satisfy Waddell's second mortgage. That Kirk agreed to advance the $10,000.00, but would have to charge a bonus of 15% for making the loan. That the transaction was closed in the office of the Dade County Security Co., at which time, at defendant's instance, plaintiff gave the Company his two checks, one for $7,087.03 representing the *Page 97 cash payment, and the other for $2,406.07 representing stock purchased. At the same time plaintiff also gave defendant his check for $603.12 for defendant's $1,500.00 worth of Dade County Stock, which said stock was used in the settlement.
"Upon the contrary the plaintiff, Andrew Kirk, testifies, in substance, as follows:
"That in the latter part of 1928 he was approached by defendant's agent, Chase, who stated that a friend owed Dade County Security Company about $14,000.00 on, a mortgage which was about to be foreclosed; that said mortgage could be settled for 50% in cash and 50% in stock. That throughout the entire negotiations he only met the defendant upon one occasion, all of his dealings being with the agent, Chase, who was 'a friend of a friend' of his and in whom he placed implicit confidence. In rebuttal plaintiff positivly denies demanding a bonus of $1,500, and denies any agreement to loan any money as such to the defendant. Upon this point his testimony is as follows: 'I was to buy certificates and pay cash to the Liquidator to liquidate a mortgage of fourteen thousand and some dollars in the Dade County Security.' Question: 'Was that one mortgage? Answer: 'Three mortgages, I think it was. I know it was something over $14,000.00, and it was uncertain as to the exact amount because the stock was fluctuating from day to day.' (Transcript, p. 75) Asked to explain getting the mortgage for $11,500.00, the witness testified on pages 77 and 78 as follows: 'It was put up to me that it was a $14,000.00 mortgage or a fraction more that was on some property, and the man was in a bad shape, wanted to raise the money. They were going to foreclose on him. He wanted to know if I would take up, the buying of this stock and pay cash to discharge this mortgage. It was a matter of a little over $14,000.00 that was at stake *Page 98 and he would give me a note for $11,500.00 There was a difference of a few thousand dollars that he could easily afford to share with me.' Q. 'Was that the agreement then that you were to share in the savings?' A. 'Nothing else to it.'
"In substance the defendant's agent. Edwin A. Chase, when called as a witness for plaintiff, testified as follows:
"That defendant came to him under quite a strain, and stated if he could get somebody to take tip the Dade County mortgage he could save 50% of that mortgage and get an extension of new life, as they were about to foreclose; that he was never asked to secure a loan, but merely requested to get sonic one to pick up those mortgages, and that defendant would pay 10% to get some one to pick up the mortgages. That when witness contacted plaintiff about taking up these mortgages, the statement was made that it would be an accommodation and a help to a worthy man in distress. That nothing was said about loaning any money, the conversation relating to the purchase of stock and the taking up of the mortgages. That nothing was said about any payment to plaintiff for so doing. That the witness considered that he was acting for both parties. That witness took the abstract to his own lawyer. That the price of Dade County Security stock was fluctuating. That the ten percent was to be paid plaintiff for his services in securing the stock and advancing the money to have the Dade County mortgages discharged. That, as security, plaintiff was to take back a new mortgage upon the identical property together with a fifteen-acre tract of land near the town of Modello.
"From all of the evidence, including the testimony of the three witnesses as specifically noted above, I, as Master have reached the conclusion that the defendant has failed to meet and carry the burden of proof imposed on him by, *Page 99 the averments of his answer, in that he has failed to establish by a preponderance of clear and satisfactory evidence his charge that plaintiff wilfully violated the provisions, of the usury statute as set forth in Section 6938, Florida C. G. L., 1927. Plaintiff, in most emphatic language, denies that he ever demanded a bonus either from Beach, the defendant, or from Chase, the broker. In this denial plaintiff is supported by the testimony of Chase, whereas there is no testimony to support defendant's contention that a bonus of $1,500.00 was demanded. In the beginning it is clear that Chase, was acting as the duly authorized agent of the defendant, Before the deal was actually closed it is likewise apparent that Mr. Chase also acted, at least in several instances, as agent for plaintiff. The evidence shows that Mr. Kirk, the plaintiff, was a newcomer to Florida, having located in this state with the hope of recovering from a nervous breakdown, and had no intention whatever of wilfully violating the statutes of this State prohibiting usury. The evidence further shows that Mr. Beach, the defendant, was, at the time and for years prior thereto actively engaged in business in Miami as a licensed real estate broker and insurance agent. That the terms of the contract originated with the defendant, and that at no time did plaintiff regard the transaction as a loan of money. The latter's contention being that he was to take up the three outstanding Dade County mortgages by acquiring from a fluctuating market and turning over to the liquidator, approximately $7,000.00 worth of stock certificates and $7,000.00 approximately, in actual cash. This contention again, is strongly supported by the testimony of Mr. Chase, who reiterated there was never any mention of any loan of money, all conversations and understandings relating solely to purchase of stock in Dade County Security Company *Page 100 and taking up the three mortgages then held by the liquidator of said Company.
"Applying the law to the facts as found above:
"In the case of Chandler, et ux., v. Kendrick, 146 So. 551, the Supreme Court of Florida, speaking through Mr. Justice TERRELL said: Under the, law and the decisions, usury is a matter largely of intent. It is not fully determined by the fact of whether the lender actually gets more than the law permits, but . . . whether there was a purpose in his mind to get more than legal interest for the use of his money, and whether, by the terms of the transaction and the means employed to effect the loan, he may by its enforcement be enabled to get more than the legal rate. Benson v. Trust Savings Bank (Fla),142 So. 887; R. C. L., pp. 223, 224.
"A thing is wilfully done when it proceeds from a conscious motion of the will, intending the result which actually comes to pass. It must be designed or intentional, and may be malicious, though not necessarily so. 'Wilful' is sometimes used in the sense of intentional, as distinguished from 'accidental,' and, when used in a statute affixing a punishment to acts done wilfully, it may be restricted to such acts as are done with an unlawful intent. Clark v. Gray, 101 Fla. 1058,132 So. 832; United States v. Boyd (C. C.) 45 F. 851, text 855; State v. Clark, 29 N.J. Law 96.'
"In the latter case, cited as Pushee v. Johnson, 123 Fla. 305,166 So, 847, our State Supreme Court, in an opinion by Mr. Justice BUFORD, concurred in specially by the late lamented Mr. Justice DAVIS, after quoting with approval the law as announced in the Chandler v. Kendrick case, supra, goes a step further by saying:
" 'The theory upon which laws against usury have been enacted, and the principle which has governed in their *Page 101 interpretation, have always been, that the borrower was at the mercy of the lender, and subject to his utmost, exactions and avaricious demands, unless protected by laws.' And the last sentence of Mr. Justice DAVIS' concurring opinion reads as follows: 'The usury law was intended as a shield of defense, not as a means of borrowers getting something for nothing on mere legal technicalities.' * * *
"However, under the broad provisions of Section 6937, C. G. L., where usurious contracts are defined to be: 'All contracts for the payment of interest upon loan, advance of money, or forbearance to enforce the collection of any debt, or upon anycontract whatever at a higher rate, of interest than ten per cent per annum, are hereby declared usurious (underscoring by the Master), the mortgage contract in this, case was, and is, technically usurious. This being so, plaintiff should not be permitted to collect from the defendant more, than the actual amount originally expended by him, plus interest at the rate of 8% per annum, after deducting all interest heretofore actually received."
It thus appears that by, reason of appellee's buying the necessary stock and paying the necessary cash, the result of the transaction was that appellant Beach's existing debt was reduced from $14,174.06 to $11,500.00, and in addition Beach thereby secured a five-year extension; a most advantageous transaction for Beach. The latter profited much more therefrom than did appellee Kirk.
The stock of the Security Company, while selling at a fluctuating discount, was received by the Security Company as money, and served as such, at par, up to fifty per cent of the mortgages in question.
In the case of Haywood v. Le Baron, 4 Fla. 404, this court held (quoting the second headnote) that:
"Where there is a loan of bank notes which, though depreciated at the time, yet serve as money, both the *Page 102 borrower and the lender acting bona fide and innocently, regarding and treating the notes as money, and there is no shift or device to cover a loan of money, and thus evade the statute against usury, the transaction is not usurious."
Applying this holding to the facts of this case as found by the court below, and correctly so, I seriously doubt if there was even "technical usury" in this transaction; certainly not wilful or intentional usury. What Beach gained by the transaction far exceeded the so-called "bonus" alleged to have been charged him by Kirk. Kirk, at Beach's request, saved Beach from the foreclosure of a mortgage indebtedness of over $14,000.00, and now seeks to wipe out the entire indebtedness by claiming Kirk was guilty of wilful usury and should, under the penalties provided by Section 6939 for wilful usury, stiffer a forfeiture which would wipe out his entire indebtedness to Kirk. Under the facts of this case, this defense is inequitable and if allowed would result in a great injustice, and one never contemplated by our laws against usury.
The case of Chandler v. Kendrick, 108 Fla. 450, 146 So. 551; Pushee v. Johnson, 123 Fla. 305, 166 So. 847, and Jones v. Hammock, 131 Fla. 321, 179 So, 674, cited in the opinion of Mr. Justice CHAPMAN in the instant case, support the conclusions of the court below. The defense of wilful usury set tip in appellant's answer to the bill was not borne out. The weight of the evidence as to the true nature of the transaction was to the contrary.
For these reasons, as well as those advanced by Mr. Justice CHAPMAN, the decree appealed from should be affirmed. *Page 103