concurring. The questions underlying this appeal have occasioned a difference of opinion between the members of this court, and I have, therefore, deemed it proper to express my own impressions in a separate opinion.
It has been agreed that the concurrence in the finding as a matter of fact by the Circuit Judge and special master that the transactions of the plaintiffs and defendant, beginning in 1881 and ending in 1888, were distinct in each year composing that period, aud are binding upon this court. It has been suggested, however, that such annual transactions, by the dealings of the parties with each other, form, so to speak, a continuous transaction in law, and may, therefore, fall under the corrective power of this court. And this view has given rise to very considerable doubt as to the effects that may follow from such a conclusion. Thus, if this court is at liberty to scrutinize all the transactions between the plaintiffs and defendant from 1881 up to and including 1888, we must necessarily inquire into every item of the accounts during those years. The defendant has formally pleaded that usury permeated such accounts from the beginning of his dealings with the plaintiffs as his factors. During those years, up to the beginning of 1887, no written agreement as to interest on the factors’ accounts was made by the parties, and yet interest at the rate of ten per cent, was charged and paid. If these dealings were continuous, therefore, it is suggested, it would be in the power of the defendant to plead successfully the defence of usury thereto.
I have always felt that a distinction ought to be made between those transactions where the interest charged was within the legal limits and those beyond such legal limits. To make my meaning plain : that if parties charged and paid before 1889 ten per cent, interest, or eight per cent., or nine per cent., that such parties stood in a better light, in the eyes of the law, than where twelve, or fifteen, or eighteen per cent, interest was *595charged or paid, and that to effectuate this distinction any writing, signed by the party, for interest within the legal rate should be seized upon to protect the claim of interest. The factors in this case charged ten per cent, up to 1888. At the end of each year notes were given by the defendant for such annual balances, including such interest. Such rate of interest, being within the legal rates, should be made effectual between the parties. Many contracts required by law to be in writing are not put in writing at the moment “the minds of the parties meet” in the contract, yet being afterwards reduced to writing, in accordance with law, effect is given them as if originally in writing. So that even under the view of this case as a continuous contract running from 1881 up to 1888, I should hold the execution of the note for the amounts due at the beginning of each year to be a compliance with the law, as there was always a considerable amount then due.
But I do not hold to the conclusion that these annual advances by these factors were a continuous transaction from 1881 to 1888. On the contrary, when the defendant gave his note, on the 23d day of January, 1888, for the sum of $1,682.63, which was the exact amount then due by him to the plaintiffs, and on which he agreed to pay them interest at the rate of ten per cent, per annum, the previous accounts betweeen the parties was then closed. Loan and Exchange Bank v. Miller Brothers, Mss. Dec.1 And he had agreed in writing in 1887 to pay interest at ten per cent, per annum on the items that entered into and made up the debt for which this note was given.
As to the open account, I agree that by the paper the defendant signed, he became bound to pay such interest on the balance due on such open account. It has seemed to me that there might be some force in the reflection, that what the plaintiffs and defendant agreed to in Charleston at the first of the year 1888, was the contract between them, and that the paper that Weinberg afterwards signed embodied only a part of the stipulations of such contract really made before the paper was prepared for his signature. However this may be, he signed *596this paper agreeing to pay ten per cent, interest. This paper he sent to Witte Brothers. .This paper they retained. And now he is bound, hand and foot, as to the matter of interest.
I will pursue these matters no further, as I concur in the opinion of Mr. Justice McGowan.
Filed April 19, 1893, and to appear in a future volume among the oases of November Term, 1892.—Reporter.