(dissenting.) I cannot concur in the result *539to which a majority of the court have come. The note fell due September 2d, 1873. After that day the defendant did not hold the money under and by virtue of his contract, but rather in violation of his contract. Compensation for the use of money so detained is not, in any proper sense, interest. Although it is called interest in the note, and in the statute hereinafter quoted, yet that does not change its nature. The word is used in a loose and popular sense. By whatever name it may be called, it is in substance damages for a breach of the contract. Fisher v. Bidwell, 27 Conn., 363. The agreement in the body of the note, “ and interest at the rate of fifteen per cent, after maturity,” is nothing less than an attempt.to fix the amount of such damages. That agreement could have no effect until on and after September 2d, 1873. The statute which was then in force, (approved July 11th, 1873,) declares that “ no greater rate of interest than seven per cent, per annum shall be recovered or allowed for the time after the money loaned becomes due.” The agreement and the statute palpably conflict, and one or the other must give way. As the agreement relates to the penalty for a violation of the contract, which pertains to the remedy and is always subject to legislative control, 1 think the statute and not the agreement, should prevail.
In this opinion Park, C. J., concurred.