1. In its principal elements and characteristics, this case is ruled by Merck vs. American Freehold, etc. Co., 79 Ga. 213. Here, as there, -the loan was procured by the joint services of three intermediaries, consisting of what might he termed a central, a rural and an urban middle-man. Here, as there, a part of the loan never in fact reached the borrower’s own hands, although every cent of it passed from the lender. The amount retained by the middle-men was fifteen per cent., and this was divided amongst them in the ratio of seven to the central, and four each to the others. Here, as there, the lender had no share in these commissions, nor any knowledge that they were exacted. In that case, the contract of lending was made by an agent, the lender being a corporation. In this case, it was
2. The station of the urban intermediary was at Hartford, Conn. This intermediary was a partnership (Moore & Co.) composed of several persons, of whom Tallman was one. He alone may be considered as the urban intermediary, since the effect of his connection with this case would be the same, whether his relation to it was as an individual or as a member of the partnership to which he belonged. The notes and mortgage were made payable to Tallman, and his firm received part of the commissions. In this respect the present case is unlike Merck’s case. "We think, however, as there was positive proof that neither Tallman nor his firm was the lender, and also that Griswold, the real lender, knew nothing of any compensation to the intermediaries or of any participation by Tallman therein, this fact is, legally speaking, immaterial; more especially as the jury must have found, under the charge of the court, that what was paid to Tallman’s firm was for actual services rendered, and not by way of shift or contrivance to conceal or cover up usury, that question having been submitted to them in the charge, with instructions that if the share of Moore & Co. in the commissions was not received in good faith for services, the loan would be usurious. This element of the charge was probably more favorable to the borrower than he was entitled to. The compensation to Tallman’s firm did not proceed directly from the borrower, but came
And the same rule applies where the negotiation is through brokers. Brown vs. Scotch, etc. Co., 110 Ill. 235; Hoyt vs. Pawtucket, etc, Co., 110 Ill. 390; Haldeman vs. Mass. M. L. I. Co., 120 Ill. 390.
The jnevailing opinion seems to be that, with knowledge on the part of the lender, the loan is infected, where his own agent exacts a bonus. Bonus vs. Trefz, (N. J.) 2 Atl. Rep. 369 and notes; Payne vs. Newcomb, 100 Ill. 614; Thompson vs. Ingram, (Ark.) 11 S. W. Rep. 881.
As to when knowledge ought to be imputed or implied, see Vahlberg vs. Keaton, supra. In Call vs. Palmer, 116 U. S. 98, supra, the agent of the lender took commissions, and the notes (and presumably the mortgage) were made payable to him ; and there it was held by the Supreme Court of the United States that the loan was pure as between his principal and the borrower, the principal having no knowledge as to the charge or receipt of commissions by the agent. See also Dayton vs. Moore, 30 N. J. Chan. 543, where the
3. The station of the central intermediary (whose name was Lawton) was at Macon. Through him an application was made by Hughes, the borrower, for the loan. This application was partly in print and partly in writing. It contained answers to numerous questions, a description of the land offered as security and a plat of the same, the whole concluding with a promise “ to pay all expenses incurred in negotiating the above loan, examining the premises, investigating the title to the land offered as security, and executing all necessary papers.” According to Lawton’s testimony, these expenses were then or afterwards agreed upon and fixed at $150, which was the amount retained out of the loan. And Hughes himself testified that he did not demur to paying Lawton his commissions; by which he doubtless meant this gross sum of $150, the whole of which was deducted by Lawton at the time he paid to Hughes the net proceeds of the loan, to wit, $850. The manner in which these proceeds reached Hughes is another circumstance which distinguishes this case from Merck's case. The application bears date in May, and a lender was not found till September. The application being examined at Hartford by' Griswold, the lender, in person, he made known to Moore & Co., Tail-man’s firm, his acceptance of the same, and delivered the $1,000 to them, which they deposited in bank to their credit. They telegraphed to Lawton that the application was approved; by which they meant that a
4. Although it was shown that Lawton had advertised that he would loan money, and although he had doubtless loaned money, as he was a banker, the proof being that he did not loan it on this occasion, and the jury having found that he did not, the advertisement has no material bearing on the present controversy.
5. Both Lawton and Moore & Co. took part in facilitating the payment and transmission of accrued interest on this loan, Lawton on several occasions giving notice to the borrower that interest was soon to become due, and requesting that it be' forwarded promptly through him, so as to meet the interest notes at maturity. These • services were beneficial to both the lender and borrower, and as they seem to have been rendered voluntarily, they were doubtless beneficial also to the business of the intermediaries. No express stipulation appears, either as to rendering them or as to paying for them, and we see not how they could have tainted the loan with usury. Furthermore, if they did taint it, we are unable to see how any deduction on account of them could be made from the debt, as there was no proof of their value.
TJnon the whole, we are convinced that there is nothing in this case to distinguish it legally, upon the question of usury, from that of the American Freehold, etc. Co. vs. Merck. Although we have not discussed the grounds of the motion for a new trial specifically, we have dealt with the real questions which underlie them, and which control the case.
The result is that, so .far as appears to us from the record, the court committed no error in upholding the verdict in favor of the plaintiff below for the whole debt, principal, accrued interest and attorney’s fees, or in denying the motion for a new trial.
Judgment affirmed.