Where a transaction purports, upon its face, to be a loan of goods or money, and such loan constitutes the entire contract, if a greater sum than seven per cent per annum is reserved as a compensation for the credit given, no extrinsic proof is necessary to establish the usury. Such a transaction is usurious,per se. But where the agreement for a loan or advance of money or goods is only part of an entire contract, embracing other matters, it is in all cases a question of fact whether usury was intended. It is never, in such cases, a necessary inference, that the premium was reserved *Page 145 solely for the forbearance. Even although expressed in terms to be for forbearance, yet, as the extra premium may have constituted part of the inducement to the making of the contract as a whole, an usurious intent is not to be inferred without proof.
The English cases, in which it has been held that agreements by the purchasers of lands or goods upon a credit to pay more than legal interest for the purchase-money, were valid, and the cases in our own courts holding a similar doctrine in respect to charges by commission merchants, of an extra premium for their advances, rest not upon any peculiar doctrine applicable to such cases, but upon the general principle here stated.
In all these cases, it is incumbent upon the party alleging the usury to prove the usurious intent. The affirmative proof given by the plaintiffs in the case of Trotter Douglass v. Curtis (19 John., 160), that the two and a half per cent premium charged by them upon their advances was a customary charge, was necessary there, because there was no agreement in that case by the defendants to pay this commission, except such as was to be implied from this proof. But in the case of Suydam v.Westfall (4 Hill, 211), where it was expressly agreed that the plaintiffs should be entitled to two and a half per cent commission on their advance, proof on the part of the plaintiffs of the reasonableness or customary nature of this charge was wholly unnecessary, although such proof was actually given.
In the present case the stipulation for a charge of five per cent upon advances to be made by the plaintiffs, was part of a written agreement, embracing a variety of conditions other than that relating to such charge, among which were these, viz.: that the plaintiffs should have the selling of the whole of the defendants' wool and skins; that no drafts should be drawn upon them, except as specified in the agreement; and that when the defendants' drafts should fall due, the plaintiffs, if not put in funds should be at liberty to sell the property in their hands at the market price. *Page 146
On the part of the plaintiffs, it was agreed that they would do the business for a commission of five per cent, including all charges except disbursements; and that they would make certain advances. Now, it is impossible to infer from the face of this contract that the plaintiffs would have agreed to accept the five per cent commission upon sales excluding all charges for storage or other services, without the stipulation for a charge of five per cent upon their advances; and if this stipulation constituted or may have constituted any portion of the consideration upon which they agreed to other portions of the contract, then, of course, the agreement could not be usurious per se.
That the commission for advances is five per cent in this case, instead of two and a half, as in the cases of Trotter andDouglass v. Curtis, and Suydam v. Westfall, can make no difference. The amount of the commission is of no importance except as it may bear upon the question of fact whether there was an usurious intent; and as no evidence of such an intent, aside from the contract itself, was offered on the part of the defendants, the question of the reasonableness or unreasonableness of the commission, or its accordance with custom, did not arise. It follows, from these views, that the court below was right in allowing the items objected to. This conclusion renders it unnecessary to consider the question whether the defendants were precluded by their acquiescence in the accounts remitted to them by the plaintiff, from setting up the usury. I may, however, say, that I see no reason to differ with the conclusion of the court below on that subject. The judgment should be affirmed.
DENIO, Ch. J., did not sit in the case; all the other judges concurring,
Judgment affirmed. *Page 147