January 5, 1925. The opinion of the Court was delivered by This is an action on a note and to foreclose a mortgage. The execution of the note and mortgage is admitted, but the defendants set up usury.
The plaintiff admits that the money received, if applied to interest, will make more than 8 per cent, but alleges that the *Page 116 cash capital of the bank was small and that the loan of $10,000 made in this case was a very large part of its capital; that the debt was not paid at maturity, and the bank needed the money to pay its own debts; that in order to extend the loan, it was necessary to sell some United States bonds at a great sacrifice, to wit, 15 per cent below the face value of the bonds; that there was an agreement between the plaintiffs and the defendants that the bonds should be sold and the loss sustained should be divided between the plaintiff and the defendants. This agreement was denied by the defendants, and upon that issue the case went to trial. The case was referred to a referee, who found that the contract had been made and the sum paid was for the loss on the sale of the bonds and not usurious. The case was heard on appeal from the findings of the referee, and the report of the referee was sustained by the trial Judge.
This appeal is from the decree of Judge Dennis. The appellants in their arguments make this statement of the issue before this Court:
"It is plain in the instant case that the only real question involved is whether the plaintiff bank performed some additional service, or incurred some additional expense, for the benefit of the borrower, over and above the use of the money, for which service or expense the sum of $723.50 was a reasonable payment. If such additional consideration was not given to the borrower and he is given nothing except the use of the money lent, then the payment of that sum must necessarily be referred to extra compensation for the use of the money, or to the payment of usury."
The referee and Circuit Judge find that there was such additional expense, and the testimony abundantly sustains their findings. Let the report of the referee and the decree of Judge Dennis be reported.
Some confusion has arisen as to the amount of the attorney's fee. It was agreed at the hearing that only $500 attorney's fee is claimed. *Page 117
Let this correction be made, and, when so made, the judgment appealed from is affirmed.
MESSRS. JUSTICES WATTS, COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.