The questions arise upon the charge of the court; and, to have a right understanding of them, it will be necessary to see what the case was. The plaintiff *Page 204 claimed, as assignee of E.F. Bullard, to recover of the defendants, as partners, the sum of $104.18, as the balance of accounts between E.F. Bullard and the defendants. The substance of the arrangement between the defendants and Bullard, out of which the account arose, was, that he should, from time to time, let the defendants have money, and they were to receive and pay his drafts and orders when presented. In the fall of 1856, E.F. Bullard stated the account between the parties, making the sum of $109.11 as the balance due to him. The account, as thus made up, was presented to the defendants, and payment of the balance demanded; but not being paid, it was assigned by E.F. Bullard in March, 1857, to the plaintiff. The complaint admitted that the defendants had from time to time made payments to E.F. Bullard, leaving the sum of $104.18 due him on the 1st December, 1856, for which amount judgment was demanded. In the account as stated by the plaintiff's assignor, among other items therein allowed to the defendants as payments, was a $75 note made by Bullard, payable to the order of one Harrington, which was paid by the defendants. It appears in evidence that about a week after the date of the note, which had ninety days to run, Harrington came to the defendants' store, and wanted to get the money on it. The defendants' objected to paying it then, saying that money was worth more than the interest to them; but Harrington finally agreed to take $70 for it, and they paid him that amount. Through mistake in the account stated by E.F. Bullard, no credit was given to the defendants for $100 paid to S.G. Perkins, on the 26th September, 1854, on Bullard's order. Allowing the Harrington note as a payment, and also the $100 paid to Perkins and omitted to be credited, it would leave nothing due to the plaintiff. The court charged the jury, among other things, that if the $75 note was usurious, yet if the maker had stated the account including it, and thereby admitted the correctness of the charge, the plaintiff, claiming *Page 205 as assignee of the maker, cannot set up the defense of usury. To this proposition there was an exception. The court further charged, that if the jury were satisfied from the evidence that the $100 claimed to have been paid by the defendants to Perkins, September 26, 1854, was actually paid under authority from E.F. Bullard, and was omitted in the account through mistake, they would have the right to allow it to the defendants as a credit in the account between the defendants and E.F. Bullard; to which the plaintiff excepted, and requested the court to charge that, under the facts of this case, the defendants were estopped from setting up said $100 mistake against the plaintiff in this action, which was refused.
None of the exceptions are now insisted on, except the first; and that, I think, is not tenable. If the note for $75, made by E.F. Bullard and payable to Harrington at the defendants' store, was tainted with usury, the plaintiff is not in a condition to set up the usury in avoidance of so much of the account stated by his assignor. Whether there was usury in the transaction depended upon Bullard's testimony, who stated that the money was loaned by him to Harrington, for the accommodation of the latter. If so, the discounting of it by the defendants, for $70, was usurious. On the contrary, if it was not an accommodation note, but belonged to the payee, and was given for a debt of the maker, there was no usury in its inception, and the defendants were at liberty to purchase it from Harrington for $70, or any other sum that they agreed upon. Conceding, however, that it was a usurious loan, and might have been avoided by E.F. Bullard, the borrower, the plaintiff, under the circumstances of this case, cannot interpose the statute against usury, in his behalf. Bullard, in December, 1856, stated an account with the defendants, in which was included the $75 note in question, and admitted it as an offset against a corresponding amount in his favor, and cancelled the one in payment of the other. The balance *Page 206 claimed as due to him was $109.11, over and above all the items he had allowed as payments; and this account as stated by him, Bullard himself testified, was the one he assigned to the plaintiff. The plaintiff brought his action to recover this balance, claimed to be due from the defendants to his assignor upon such accounting. On the trial, he attempts to impeach, on the ground of usury, one of the items on the credit side of the account which his assignor had allowed as a payment, and struck the balance accordingly. This he could not do. If there was any usury in the case, his assignor had waived it, and when an assignor waives the defense of usury the assignee cannot set it up. Here the assignor did not merely waive the defense of usury, and sell the account subject to the items allowed and admitted by him to be proper offsetting items; but the purchaser took it subject to such items, and thereby bound himself to allow and pay them. Again: in the complaint the plaintiff admitted the payments allowed by his assignor, and sought only to recover the excess or balance claimed by such assignor as being due at the time of the assignment. The important issue raised by the pleadings was the amount paid to E.F. Bullard, and, according to the plaintiff's own showing, one of the payments made to and allowed by Bullard was the $75 note, sought to be avoided on the ground of usury. He cannot be permitted to deny the payments averred in his complaint (which includes all allowed by his assignor), nor question the validity of them.
There is another conclusive ground against the plaintiff. No one but a party to a usurious loan, or his heirs, devisees or personal representatives, can avoid a usurious contract on account of usury. (Post v. The Bank of Utica, 7 Hill, 391;Rexford v. Widger, 2 Comst. 131.) Usury cannot be set up by a stranger to the original transaction. A purchaser from the borrower is not included in the term borrower, and cannot avoid a note or mortgage for usury. *Page 207 (Schermerhorn v. Talman, 4 Kernan, 127.) Nor is a right of action to avoid notes or contracts, on account of usury, assignable.
The judgment should be affirmed.
All the judges concurring, judgment affirmed. *Page 208