I concur fully in my brother E. Darwin Smith’s opinion in this case, except that portion relating to so much of the charge as instructed the jury, “that if the defendant Harriet Mount knew the defendant John Mount was receiving money on his own account from the plaintiff on account of the loan, she would be liable for the money he paid.” I am clearly of the opinion that this part of the charge was correct, in view of the evidence in the case, and of the peculiar character of the transaction. The whole charge is not given in the case, but so much, and such parts only, as are excepted to. The action was brought to recover back the sum of #286, paid as usurious premium upon the loan of #1000, as follows: #136 at the time of making the loan for one year, #100 for extending it one year thereafter, *435and $50 for extending it still another year. The evidence on the part of the plaintiff tended to show that John Mount, the husband, made the bargain with the plaintiff for the loan, and for the extensions, for Harriet, the wife, and that she knew the character of the bargains he made with the plaintiff. The usurious premiums were all paid to the husband, though some of them were paid in the house and upon the table, when the wife was present, in and out of the room attending to her household affairs. Harriet, the wife, on the other hand, testified that she never authorized the taking of any usury, and never knew that any had been paid, and never received any. That she made the loan herself, and for lawful interest only. John Mount, the husband, also testified that his wife had no knowledge of the usurious part of the agreement when it was made, and that he never paid her any portion of the usurious premium he received; that she never authorized him to bargain for, or to take usury on account of the loan, and knew nothing of that part of the agreement until afterwards. The money loaned was the separate property of the wife. It will be seen, therefore, that it became a question upon the trial whether these extraordinary and unconscionable exactions were usurious in their character as respected the lender, Mrs. Mount, and if they were, whether she would be liable in an action for the recovery back of the money thus paid. It was clearly in reference to this aspect of the case that the charge was made as above stated. This being the only part of the charge set out in the case, the presumption must be that the law was laid down to the jury correctly, as to the agency of the husband and the binding nature of his acts upon the principal, and all other matters pertinent to the case as it was presented by the evidence.
The precise question then would necessarily arise, in case the lender was cognizant of the acts of the person acting in her behalf so as to taint the agreement, as to her, with the usury exacted and paid, whether she would be liable in ibis action, even though the njonev did nqt come to her hands. *436but was received by her husband and retained by him for his own benefit with her knowledge. In such a case, it seems to me, there can be no doubt of the legal character of such usurious payments. The jury, of course, found from the evidence that all this was done with her knowledge and consent. That she consented he might take this usurious premium, and also that he might retain it as his own. But it was nevertheless paid on account of the loan, and as part of the bargain by which the loan was secured, and the time extended. It was her bargain, although made by her agent, and all the money paid upon her contract was in contemplation of law paid to her although received by an agent. Her knowledge and sanction of the bargain of the agent made it hers, in all its parts, of which she had knowledge and to which she made no dissent. The transaction is a unit and can not be separated. To hold that the principal was liable for otie part and the agent only for another, would necessarily imply that one portion was the act of the agent and not of the principal. This was the case of Condit v. Baldwin, (21 N. Y. Rep. 219. S. C. 21 Barb. 181.) In. that case it was held that the principal was not liable for the act of the agent, and the contract not tainted as respected her, precisely because the agent acted for his own exclusive benefit and advantage, without any knowledge or assent of his principal whatever, who had never heard of the usurious part of the transaction, had never authorized it, and never received any portion of the unlawful premium, and never knew that any had been paid to the agent. That has been regarded by judges, and the profession generally, I think, as an extreme case, and as extending the exemption of the principal from the legal consequences of the improper, and even unauthorized, acts of agents, in the business they are employed to transact, quite as far as any rule can warrant. That decision, however, in view of the peculiar facts of the case, stands, I think, upon a sound principle. But the facts there, upon the turning point, were just the reverse of the facts in *437this case, as found by the jury. Here the principal knew what the agent was doing in her business and with her money, and what the borrower was paying on account of her loan to him. She consented that her husband and agent should receive the money upon the corrupt bargain, and can not shield herself upon the plea that her agent has never paid it to her, but has kept it himself by her consent. Payment to him in such a case is payment to her. It would be exceedingly dangerous, as it seems to me, and lead in practice, to a complete evasion of the statute, to hold a contrary doctrine in a case like this. All corrupt loans would be made through agents, and all the lender would have to do to save himself, would be to agree that the agent might keep for his own benfit whatever exorbitant exaction he might demand and obtain. I think the charge, in this respect, was correct in point of law, and was in strict accordance with the decision in Condit v. Baldwin.
[Monroe General Term, December 5, 1865.It follows from this, that a new trial as to the defendant Harriet Mount, should be denied, and the complaint dismissed as against John Mount, with costs of the action.
James 0. Smith, J. concurred.
Judgment accordingly.
Johnson, J. C. Smith and E. D. Smith, Justices.]