I am of opinion, that the court properly excluded the testimony offered by the plaintiff, to prove that the defendant had taken unlawful interest upon a contract not stated in the declaration ; for if proved, the plaintiff could not be entitled to recover upon it, and the jury could neft infer from the fact that the defendant had taken usury on one contract, that he had taken it on another and different contract®
In regard to the notes offered in evidence by the defendant, it appears that he had placed his defence on the ground that the extra sum received by him was a compensation for time and expense in obtaining the money from the banks, and''] running the notes. These notes having been discounted at: the bank, about the time of the transaction, they were properly admitted in evidence, because they conduced to prove the fact on which the defendant rested his defence.
It has been insisted on, by the counsel for the plaintiff, that the court, upon the evidence presented by the motion, ought to have charged the jury, that if they believed it to be true, they must find for the plaintiff; because the evidence was sufficient to prove the transaction to be usurious. But it does not appear, that the whole evidence is brought up before us. Nothing more is stated, than what was necessary to raise the questions respecting the admission or rejection of the testimony.
The court correctly charged the jury, that a compensation for obtaining a loan at a bank, and running the notes, would not make the contract usurious, unless it was so unreasonable and extravagant as to shew it to he a colour for usury, in order to evade the statute; and submitted the questions of fact to the jury. And it does not appear from the facts before us, that the court could, with propriety, have charged the jury on any other point of law.
I am of opinion that a new trial ought not to he granted.
Tetimbuii, Edmond, Smith, Brainard, Baldwin and Goddard, Js. were of the same opinion. Hosmer, ,T.This action is founded on a contract, made on the 2d of October, 1811, for the loan of 850 dollars, payable in one year, with interest, for which a promissory note for 950 dollars was given, comprising, as it is said, 100 dollars, *346for usury. The question ami answer expunged from the deposition of Thomas Rich, referred exclusively to a note of hand., dated the 1st of April, 1813, promising to pay ,50 dollars, in four years. It is now objected, that this part of the deposition should have been committed to the jury. For this, no possible reason can be assigned. Let it be admitted, that in this latter note there was an usurious reservation. What relation does that bear to the supposed usurious contract, made two years before, on which alone the plaintiff ’s action is founded l The contract, in reference to which the proof offered was repelled, varies from the one stated in the declaration, in respect of the time of its inception, and of its becoming due j of the duration of the loan; the consideration of the agreement; and the sum stipulated to be paid. Either of these particulars constitutes a material diversity from the contract declared on, which the plaintiff was bound to prove precisely as he has laid. Wilmot v. Munson, 4 Day 117. Carlisle v. Treats, Cowp. 671. Tate v. Wettings, 3 Term, Rep. 531. Smith v. Brush, 8 Johns. Rep. 84. Swift’s Ev. 159. 160. Thill. Ev. 159. Besides, the penalty of the statute being “ the full value of the goods and moneys, or other things lent,” decisively shews, that the enquiry concerning an usurious reservation on 150 dollars, cannot be relevant, when the suit is founded on a loan of 850 dollars.
The defendant claimed, that the sum included in the promissory note of 1811, beyond simple interest, was a compensation agreed on for his expenses and services in procuring the money. The notes discounted at the Union and Meto-London banks were admitted in evidence, to substantiate the statement. In my judgment, they were legally admissible. It was competent for the defendant to prove, that lie acted bona fide as a broker, in the procurement of the money delivered to Thomas Rich. If this were true, and not a pretence, he had right to a commission for his services ; and tliis could not taint the transaction with usury, however unreasonable the compensation may have been, if it were not a cover for an usurious reservation. Shep. Touch. 61. Dagnail v. Wigley & al. 11 East 43.
The cause was committed to the jury, with observations adapted to awaken their vigilance on the enquiry, whether the sum included in the note was for the forbearance of money loaned, or for services as a broker. They unquestionably *347found the latter to be the fact: and this authorized a verdict for the defendant.
GoxriiU, J. concurred in the opinion delivered by the Chief Justice, without making any additional remarks.New trial not to be granted.