
    (86 Hun, 236.)
    DAVIS v. MYERS.
    (Supreme Court, General Term, First Department.
    April 11, 1895.)
    1. Usury—Question for Jury.
    Where plaintiff testifies that she gave the money sued for to defendant on his representation that he could invest it for her, and that it would bring 10 per cent., and that for a certain time thereafter he paid her 10 per cent., it is a question for the jury whether the transaction was only a loan or forbearance of a sum of money due, and therefore usurious.
    2. Estoppel—In Pais.
    Plaintiff testified that she gave the money sued for to defendant on his representation that he could invest it for her at 10 per cent., which, for a certain time thereafter, he paid her. Held, that defendant was estopped to say that his statement as to the investment was false, and that therefore he should be credited with the excess over the legal interest paid by him.
    
      8. Execütobs and Administbatobs—Actions—Costs.
    Costs and extra allowance will not be granted in an action to recover a sum of money with 10 per cent interest, which defendant’s testator had promised to invest for plaintiff at that rate, and which he after-wards refused to pay, as defendant would not have been' justified in paying the claim as presented.
    Appeal from circuit court, New York county.
    Action by Eliza Davis against Bertha K. Myers as executrix. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, and also from an order granting costs and an extra allowance, defendant appeals.
    Modified.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    E. J. Myers, for appellant.
    Geo. Putnam Smith, for respondent.
   VAN BRUNT, P. J.

This action was brought to recover from the defendant, as executrix of Herrmann Koehler, deceased, the sum of $4,000, with dividends thereon from the 1st of January, 1894, at the rate of 10 per cent, per annum. The evidence in this case showed that prior to June, 1881, the plaintiff had saved $4,000, and had deposited it in different savings banks in the city of New York; and that on the 23d of June she gave the money to Herrmann Koehler, upon the representation by said Koehler that he could invest it for her, and it would bring 10 per cent., and that she could have it at any time by giving 30 days’ notice. Subsequent to that time, and down to his death, in April, 1889, the said Koehler paid to the plaintiff the sum of $400 per annum, and after his death the defendant continued such payments until the 1st of January, 1894. The defendant then having refused to pay the claim of the plaintiff, this action was brought; and, the case being submitted to the jury, they rendered a verdict in favor of the plaintiff, and.the court granted costs and allowances; and from the judgment thereupon entered, and from an order denying motion for- new trial, and also from an order granting such costs and allowances, this appeal is taken.

It is urged upon the part of the defendant that the transaction between the plaintiff and Koehler was only a loan or forbearance of a sum of money due, with interest reserved at the rate of 10 per cent, per annum, and therefore usurious and void. We think this question was properly submitted to the jury. There is no suggestion to the effect that usurious interest was to be paid, but the representation seems to have been that this money could be so invested by Koehler that it would earn 10 per cent, per annum for the plaintiff; and it was on this representation that the plaintiff delivered the money to Koehler, and there was nothing to show but what the plaintiff believed this to have been the nature of the transaction. There seems, therefore, to be no reason for interfering with the finding of the jury upon this subject.

It is claimed that it was error to admit the letter of Mrs. Koehler, the defendant, without connecting it with the defendant’s testator by proof of authority or ratification. It seems to us that the record in this case contains ample evidence of ratification, if not of authority. The plaintiff produced a book, the entries in which, except a few of the later ones, were made by Mr. Koehler himself. It is headed as follows: “Herrmann Koehler, in Acct. with Miss Eliza Davis.” In this book he acknowledges to have received between the 23d of June, 1881, and the 10th of October, 1883, the sum of $4,000, and he pays her from that time down to his death 10 per cent, upon that amount, which clearly connects the letter of Mrs. Koehler to the plaintiff with the transaction. It shows that Herrmann Koehler received the money upon the terms stated in the letter. This seems to be ample evidence of ratification.

It is further urged that the court erred in not allowing, as payment on account of the principal, the excessive interest paid above the lawful rate. It seems to be a sufficient answer to this proposition that, as long as Mr. Koehler lived, the plaintiff was under the impression that her money was invested and was yielding the amount of income which Koehler paid to her. He had possession of that money under those circumstances, and it will not lie in his mouth to say that his statements in regard to the investment of the money were false, and, therefore, that he should be credited with the excess over legal interest. The same principle will apply to his executrix. She kept possession of the money, and paid the 10 per cent, to the plaintiff, leaving the latter to suppose that her money was still invested and yielding this income; and she cannot now be heard to say, as against this plaintiff, that her representation made by these payments was false. If she has made excessive payments, and has thereby rendered herself liable as executrix of the estate, she must settle it with her cestuis que trustent. After having induced the plaintiff to leave the money with her under such a contract, she cannot now be heard to say that her representations of income were untrue.

It is further urged that the executrix was justified, as matter of law, in refusing to pay the claim made by the plaintiff. The action was brought to recover $4,000, with dividends at the rate of 10 per cent. The recovery was for $4,000 with interest at 6 per cent. It seems to us that the executrix would not have been justified in paying the claim as presented, because, after a demand had been made for the money and a refusal to pay, there was simply a breach of contract, with liquidated damages, which drew legal interest, •and' nothing more. The claim being made for 10 per cent., it became the duty of the executrix to defend; and, she having partially ■succeeded, it is difficult to see how it could be said that she has unreasonably neglected to pay.

The question in regard to the presentation of the claim within the statutory time does not seem to be of any moment, because, by reason of the payments which the executrix made on account of the money alleged to have been invested, there was a recognition of the claim, which, until some question was raised, made it unnecessary for the plaintiff to take any steps as against the estate. '

We think the judgment should be modified by striking therefrom the costs and allowances, and, as modified, affirmed, without costs. All concur.  