(concurring in part and dissenting in part). This class action challenges the legality of the practices of two bail bonding agencies. The procedural and factual history of this case is set forth in my brother’s opinion, to which reference is invited. I am unable to agree with the portions of my colleague’s opinion holding: (1) that a bail bondsman may receive collateral in addition to the 10% fee authorized by MCL 750.167b(3); MSA 28.364(2)(3), and (2) that the only person with standing to challenge an excessive bail bond fee is the person actually delivering the fee to the bondsman. I concur with the reasoning and result of the remainder of my brother’s opinion.
*279I
The lower courts correctly held that a bail bondsman may not charge, accept or receive any sum of money or property in excess of 10% of the face value of the bond. MCL 750.167b(3); MSA 28.364(2)(3):
"It shall be lawful to charge for executing any bond in a criminal case, but no person engaged in the bonding business, either as principal or clerk, agent or representative of another, either directly or indirectly, shall charge, accept or receive any sum of money or property, other than the regular prevailing fee for bonding, which shall not exceed 10% of the face value of the bond for a 12 month period or any part thereof, from any person for whom he has executed bond, for any other service whatever performed in connection with any indictment, information or charge upon which the person is bailed or held.”
My brother’s opinion allows the bondsman to charge, accept and receive money in excess of 10% if that additional money is labeled "collateral” or "security”. In my view, such an interpretation is contrary to the plain language of the statute. While an argument can be made that the prohibition against "charging” over 10% is not violated when a bondsman takes collateral, he plainly does "accept or receive” money or property when collateral is taken.1 If the collateral is in the possession of the bondsman, investment of the money for the *280duration of the bond would result in the receipt of additional money or property for the bondsman and the correspondent loss of its use to the bond purchaser. Even a security interest in property possessed by the criminal defendant is "property”; if the bond should be forfeited and the collateral seized, the charge would clearly exceed 10% of the face value of the bond.
My brother finds support for the taking of collateral by analogizing to consumer usury statutes such as MCL 493.13(4); MSA 23.667(13)(4), MCL 492.118(a); MSA 23.628(18)(a), MCL 446.209; MSA 19.589. But the bail bonding statute is not merely a piece of consumer protection legislation; rather, it is designed to assure the fundamental constitutional right to reasonable bail. US Const, Am VIII; Const 1963, art 1, § 16. The statutes are not in pari materia and should not be construed as such.
In the consumer loan context, the borrower often utilizes the loan proceeds to purchase an item of personal property such as a car. In the bail bond context, the "borrower” purchases his freedom. In the former situation, the ability to repossess the car protects the lender. In the latter situation, the bondsman’s risk is secured by his ability to arrest and deliver the defendant to the authorities. The security interest in the purchased property does not require additional wealth from the consumer, while the collateral required of a defendant does require additional financial re*281sources. A legislative and judicial recognition that some defendants will not have the resources to post their own bond led to acceptance of a bail bonding system costing the defendant only 10% of the face amount and still assuring his appearance when necessary.2 Requiring collateral above and beyond the 10% maximum thwarts that legislative objective; granting a security interest in consumer goods purchased with a loan does not similarly discriminate against indigent persons.
In addition, if a lender takes possession of cash "collateral” as a condition precedent to loaning money at the maximum rate of interest, the usury statutes would be violated. Either the "collateral” would be viewed as an interest-free loan to the lender with the fair market value of the loan considered a hidden interest payment, or else the amount of the loan would be reduced by the amount of the collateral retained by the lender. Since interest payments would be based on the stated loan amount rather than the actual loan amount, the usury statute would be violated.
Finally, I agree with the lower courts’ conclusion that the taking of excess collateral interferes with the judicial discretion and authority to set reasonable bail. In setting reasonable bail, the trial judge has concluded that the criminal defendant ought to be able to obtain pretrial release upon payment of, at most, 10% of that amount for *282a surety bond. The sum total of reasonable bail plus a surcharge may well constitute excessive bail. McDermott v San Francisco Superior Court, 6 Cal 3d 693; 100 Cal Rptr 297; 493 P2d 1161 (1972). We are not persuaded by defendants’ argument that trial judges are "well aware” of the practice of requiring collateral. The judge has no control over, or advance knowledge of, the amount of excess collateral the bondsman will require.3 Further, conscientious trial judges attempt to set reasonable bail, not some less than reasonable amount based on the assumption that the bail bondsman will exact an undetermined surcharge. Hence, the judge cannot effectively exercise his or her discretion in making the crucial determination of the minimum amount of bail necessary to ensure a defendant’s presence at judicial proceedings. Instead, that discretion is vested in the bondsman, who can arbitrarily require collateral security less than 100%, but in excess of the 10% fee. This construction of the statute would destroy the intent of the Legislature to provide an alternate system for meeting bail requirements where defendants do not own or have access to any significant amount of property.
II
The circuit court defined the plaintiff class as including persons who purchased bail bonds from the defendants or for whom such bail bonds were purchased. The defendants did not appeal that determination to the Court of Appeals, nor did they argue in this Court that the person for whom *283the bail bond was purchased lacked standing to challenge the excessive fee charged. Indeed, the defendants refer to a bail bond as "a contract between a criminal defendant (or another who purchases a bail bond on his behalf) and a bail bondsman”. Yet my brother feels obligated to decide sua sponte that the only person with standing to challenge an excessive bail bond fee is the person actually delivering the fee to the bondsman, absent a showing that the prisoner directly or indirectly paid the fee. I think the issue should not have been reached; but, having been reached and resolved, I am compelled to express my disagreement with its resolution.
The interests of the incarcerated individual and the bond purchaser are identical, since both seek to obtain the prisoner’s release for a cost not in excess of the allowable statutory maximum. I cannot agree that persons "for whom” bail bonds are purchased are not damaged by illegal bail bond overcharges. In most, if not all, cases, the bond purchaser can properly be seen as an agent for the prisoner. The principle has been "well settled and elementary”, at least since 1876, that a principal has a right to sue upon a contract made by his agent, "whether known to be such or not”. Jenness v Shaw, 35 Mich 20, 21 (1876). The principle was affirmed in American Enameled Brick & Tile Co v Brozek, 251 Mich 7; 231 NW 45 (1930). As a unanimous Court put it in Grand Rapids Milk Producers Ass’n v McGavin, 295 Mich 477, 481; 295 NW 232 (1940):
"There is no question about the proposition that an undisclosed principal may claim the benefit of a con-, tract, maintain an action thereon, and enforce any *284remedies which might have been pursued by the agent himself’.
A fortiori, a disclosed principal, as here, may also enforce his agent’s rights and remedies.
Individual cases might arise in which the incarcerated person does not pay the bond "premium” either directly to the purchaser or indirectly, by considering the money paid by the purchaser to be a loan. If the bond purchaser expects and receives no repayment from the prisoner, it might be appropriate to allow the purchaser rather than the prisoner to collect the refund from any overcharge.4 However, it is manifestly unjust to dismiss Mr. Attee from the lawsuit on the basis that he has failed to show that he directly or indirectly paid the bail bond fee. Neither the defendants nor any of the lower courts have suggested such a requirement. If the Court insists on sua sponte imposing a new barrier to recovery in this lawsuit, at the very least it should allow the plaintiff an opportunity to amend his pleadings in order to allege that he "directly or indirectly” paid the fee. Even under my colleague’s analysis, the result should be a remand as to plaintiff Attee rather than outright dismissal.
Clearly the principal and the agent cannot both obtain a refund of an excessive fee, but any such double recovery can be easily avoided by the trial court in its administration of the class action. While the end result may well be the same under either approach, it would be less confusing to leave the class definition intact. Any dispute between the co-plaintiffs as to who "actually paid” the *285excessive fee cannot absolve the defendants from liability. I would remand this case with instructions that either the purchaser or the person for whom the bond was purchased has standing to challenge an excessive bail bond fee, but that only one recovery should be allowed.
Riley, J., took no part in the decision of this case.The acceptance and receipt of money in excess of 10% is obvious where, as here, it is alleged that the defendant bail bonding agency demanded possession of cash collateral. For example, on or about September 16, 1974, Barbara Cartwright purchased a bail bond from the Goldfarb Bonding Agency in order to secure the pretrial release of Buford Miller. She was charged a $55 fee for the $500 bond. In addition, defendant Goldfarb required, as a condition precedent to posting the bond, an additional $250 cash as "collateral” or "security”. I cannot comprehend how the payment of $305 cash for a $500 *280bail bond satisfies the crystal clear statutory mandate against charging, accepting or receiving money in excess of 10% of the face value of the bond, even if part of the money might be returned at a later time. Nor would I reach a different result if the collateral were in the form of a security interest in property rather than cash. The statute specifically forbids the acceptance or receipt of any money or property in excess of the 10% fee. The statute also forbids direct or indirect charges in excess of 10%.
The defendants argue that the taking of collateral gives the defendant an important financial incentive to appear at trial. But the statute does not forbid the taking of collateral; it only forbids taking money or property exceeding 10% of the bond. A shrewd bondsman might well minimize bond forfeitures by charging a fee of less than 10%, with the balance paid as collateral. The total value of the money or property received simply cannot exceed 10%. If that amount is insufficient to assure the defendant’s appearance, the bondsman need not write the bond; in the alternative, the trial court may require "additional security or other conditions” as are necessary. GCR 1963, 790.4(c)(2).
The amount of collateral, plus the fee, will necessarily be less than 100% of the bond. If the defendant can post collateral worth 100% of the bail, he will not ordinarily go to a bondsman to pay an additional 10% fee when the collateral can be given to the court directly.
However, even in a true "gift” situation, the person for whom the bond is purchased may have enforceable rights under a third-party beneficiary theory. MCL 600.1405; MSA 27A.1405. See, also, Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974).