The opinion of the court was delivered by
Rowell, J.,. The awaid.is not binding as to the-..matters in ' dispute here, for they were not submitted,, hut: only .the-.matter ... as to tlnntliree.uuonths -and a halfsi interest... And-the faet-that.-> the award recites: that all. matters in. difference were submitted./., is not ¡controlling ;.-foivit;is the .submission that -governs, as toé what wasj submitted, and not the award.. ■■ n.... m., ...
The piaster binds,, on testimony admitted ¡without' objection'/-.-. that.tlae defendanfisigned the $361 note,¡protesting that he:did<.<*77not oavo it, anti under the orator’s oral agreement that if on looking over and settling, it Ayas not found to be all right, he Avould make it right. The report is not excepted to, and this branch of the case stands for disposition on the facts reported. The oral agreement being proved Avithout objection, it is as fully operative as though it had been reduced to writing as a part of the note itself, and takes aAray the othenvise prima facie effect of the note as evidence of consideration, and compels the orator to sIioav consideration aliunde, Avhich ho has failed to do, and therefore cannot recover the note.
Nor can he retain the interest mistakenly paid upon it, as it Avas designedly written without interest.
. As to the $50 for damage on the coav, parcel of said sum of $120.50, the master finds that the orator had no Aralid claim for such damage, but that ho took adArantage of the defendant’s necessity for extension of time on his notes, and compelled him to allow it, Avhich ho Avould not have, done, and which the orator kneAv he would not have done, but for his necessity.- A similar finding in Sartwdl v. Horton, 28 Yt. 370, was regarded as a distinct finding that the claim Avas false to the knowledge of the party making it; and we regard this finding as amounting to that. This being so, the orator is not entitled to receive, nor to retain, if he has received, that $50. Hartwell v. Horton is full authority for this, in AAdiich the rule is laid doAvn to be, that if there.is a Avant of good faith in making a claim, and the party making it is exacting that Avhich he does not believe to be a right, .and there be — among other things — any undue advantage taken of the other' party’s situation, and he pays money, it may be recovered. Hoyt v. Dewey, 50 Vt. 465, is to the same effect. And see Bellows v. Sowles, 55 Vt. 391.
Besides, this transaction aauis clearly usurious. It \vas nothing but an agreement on the one hand for receiving, and on the other for paying, interest aboAre the legal rate for granting further time; and money paid aboye the legal rate for the forbearance of an existing debt is usurious as avoII- as money thus paid at the time of the loan or the creation of the debt. Carlis *78v. McLaughlin, 1 D. Chip. 111; Hawkins v. Life Ins. Co. 57 Vt. 591.
As to the purchase price of the sleigh, other parcel of said sum of $120.50 : The defendant did not want the sleigh, and had no use for it; but the orator took advantage of his situation and compelled him to buy it at fifteen times its value, in order to get extension on his notes, which were then in the hands of an attorney for collection. These circumstances make that transaction usurious also, notwithstanding the subterfuge of a sale resorted to to cover it; for the law is quick to discern the intents of men, and piercing even to the dividing of the joints and marrow of sham and pretence. Austin v. Harrington, 28 Vt. 130; Low v. Prichard, 36 Vt. 183; Poland, C. J., in Williams v. Wilder, 37 Vt. 613, 619.
It resulting from this holding that the defendant has largely overpaid his mortgage, he asks for affirmative relief in respect thereof under his answer, claiming that tKs is a bill lo account, and that in such cases the-periy against whom the balance is found will be decreed lo ] ay it. Put although an accounting is incident to a Lili to foreclose, yet such a bill is not a proper hill to ata unt; for what are called bills to account are brought only when there ate mutual accounts between the parties, that is, when tacli paity has received and paid for the other; or when the accounts are all on one side, but there are circumstances of great complication and difficulty in the way of adequate relief at law; or when a fiduciary relation exists between the parties, and a duty rests upon the defendant to render an account to the orator. 3 Pomeroy’s Eq. s. 1421.
And now, the defendant asking for liberty to apply for leave to filo a cross-bill, the cause is remanded for that purpose, with mandate. , ■