The opinions in this case were filed on April 3,1897, but the remittitur was stayed on petition for rehearing until
The opinion of the Court was delivered by
The facts out of which the issues herein arose, are set forth in the Case, and they, together with the decree of his Honor, Judge Gary, will be incorporated in the report of the case.
1 The appellant’s exception to the order of Judge Townsend is as follows: “Plaintiff excepts to the order of Judge Townsend, of 16th August, 1895, referring certain issues to a jury; because the said order is without jurisdiction and void, in that it disregards and reverses the order of Judge Witherspoon, refusing to refer issues to a jury in this case.” Even if it should be conceded that the defendant, Mattie S. Gillam, was precluded by the order of his Honor, Judge Witherspoon, dated 23d March, 1893, from having a trial by jury, under section 274a of the Code, as to the issue tried by the jury before
2 The first exception to Judge Gary’s decree is as follows: “1. That his Honor erred in not ruling out, on the objection of plaintiff, as incompetent and irrelevant, the following testimony: (a) All the testimony of Mattie S. Gillam and J. B. Gillam, her husband, as to acts and declarations of Fred. T. Lockhart at the time of the transaction, tending to show whom he represented, 'and for whom he was acting in the transaction, the same being an attempt to prove agency, by the acts and declarations of the very person whose agency is the question at issue. (¿) All the testimony of Mattie S. Gillam and her husband, as to the agency of Fred. T. Lockhart with the plaintiff company, the same being conclusions and deductions drawn from the acts and declarations of the person whose agency is sought to be established.” This exception is too general for consideration, in that it fails to point out any particular error—Sims v. Jones, 43 S. C., 99—and for the further reason, it does not appear that the Circuit Judge ruled, or was requested to rule, on the competency of said testimony. If the Circuit Judge had been requested to rule on the competency of said testimony, and had failed to do so, the proper exception would have been to complain of error on the part of the Circuit Judge in failing to rule upon its competency, but not of error in not ruling out said testimony. Willis v. Tozer, 44 S. C., 16.
4 The second exception to Judge Gary’s decree alleges error in holding that the contract sued on was usurious. In reaching a conclusion upon this question, it is very important to determine whether the Corbin Banking Co. was the agent of the plaintiff in negotiating the loan. After carefully considering all the testimony in the case, the Court is of the opinion that the Corbin Banking Co. was the agent of the plaintiff in negotiating the loan, and that it was in pursuance of a scheme on the part of the plaintiff and the Corbin Banking Co. to evade the usury laws; and, as might naturally be expected in such cases, the question of agency has, to a great extent, to be shown by circumstances instead of direct evidence. Without attempting to detail all the circumstances inducing such belief, we will mention some which are very material: The witness, J. B. Gillam, says: “ * * * that the interest called to be paid in 1887, 1888, 1889, and 1890, he paid by sending to the Corbin Banking Co, * * * Every time that witness would send this money the Corbin Banking Co. would send him back an interest coupon * * * The plaintiff never called upon him for any money. All the communications were from -the Corbin Banking Co.” To the same effect is the testimony of Mrs. Mattie S. Gillam. The circular and the letter of' the Corbin Banking Co. to Mrs. Gil-lam, marked “exhibit 2” and “exhibit 3,” which will be set out in the report of the case, also tend strongly to prove agency on the part of the Corbin Banking Co. The testimony tended to show that all papers were prepared by the
5 Having determined the question of agency, we proceed to consider the question of usury.. The mortgage sued upon was executed on 1st January, 1887; to secure note of 24th December, 1886, for $1,000, payable in five years, with annual interest until paid at the rate of eight per cent, per annum, unpaid interest to bear interest after maturity at the rate of ten per cent, per annum, and also an attorney’s fee of ten per cent, of the principal and interest due, as provided in the notes and .mortgage. When the loan was consummated, the Corbin Banking Company deducted • commissions, amounting to $200, besides other sums hereinafter mentioned. This was done with knowledge on the part of the plaintiff. Under the case of Brown v. Brown, 38 S. C., 173, these facts constitute usury. The appellant asked and was granted leave to review the case of Brown v. Brown, supra. This case has been affirmed in subsequent cases by reference to its authority; and, after careful consideration, this Court sees no reason to depart from its principles. The appellant’s attorneys contend that even if the contract was rendered usurious by deducting the $200 commissions, still it was not usury for the plaintiff to receive the interest, as it did not exceed ten per cent, per annum on the amount which the defendant, Mattie S. Gillam, actually received, to wit: $800 — the law at the time of the contract allowing the lender to charge ten per cent, where it was expressed in a written instrument. There might be force in this argument were it not that the agreement as to commissions and the payment of interest formed parts of a single transaction. Sections 1390 and 1391 of the Rev. Stat. are as follows: Section 1390. “No greater
6 The third exception complains of error on the part of the Circuit Judge in overruling the plea of the statute of limitations. The appellant contends that the claim for an usurious charge of interest is in the nature of a penalty, and is barred after three years before the Commencement of the action. This view is in direct conflict with section 1391, supra. Under that section the party who has paid usurious interest has two remedies, one is to
7 The next exception complains of error on the part of the Circuit Judge in not allowing the counsel fee provided for in the mortgage. The intention of section 1390 is to allow the plaintiff to recover only the sum actually advanced; and to allow a fee for foreclosure of the mortgage would be to add to the statute. The plaintiff is not even allowed costs, and for as strong a reason counsel fees cannot be allowed.
8 The fifth exception questions the correctness of his Honor’s'ruling in regard to the insurance. This exception is partly disposed of by what has been said herein-before as to agency. The facts show that the plaintiff was bound by the agreement, and we will proceed to consider whether there was error as to the amount allowed. The fifth section of the mortgage shows that the property was to be insured to an amount equal to one-third of the principal of the loan. The true principal of the loan was |800. One-third of $800 is, therefore, the amount which should be allowed, with interest from the date of the fire.
The sixth exception cannot be sustained, because the defendant, Mattie S. Gillam, was not notified that the property had not been insured.
It is the judgment of this Court, that the judgment of the Circuit'Court be modified as to the amount due for failure to insure the property, but that in all other respects it be affirmed.