
    Wm. Utterback v. Mary K. Wilhoit et al.
    [Abstract Kentucky Law Reporter, Vol. 3-622.]
    Usury.
    Where under the law at the time of the execution of a note the parties had the right to agree to pay eight per cent, interest on the note, such agreement was not illegal; but when it was agreed that in addition to the eight per cent, shown on the face of'the note they also paid two per cent, in advance, the entire transaction is tainted with usury, and the payee of such note is only entitled to recover the lawful rate of interest, that is such interest as if no rate had been agreed upon, namely, six per cent.
    APPEAL FROM WOODFORD COURT OF COMMON PLEAS.
    
      II. C. McLeod, for appellant.
    
    
      Porter & Wallace, for appellees.
    
    February 21, 1882.
   Opinion by

Judge Pryor:

The case of Johnson v. Utley, 79 Ky. 72, settles the question here. There was no law enforcing the penalty of forfeiture at the time the action was instituted and therefore the appellant was entitled to recover his debt with legal interest.

The parties had the right under the law at the time this note was executed to agree in writing to pay eight per cent, interest on the principal sum, but in this case the agreement by which the appellee undertook to pay eight per cent, interest was erroneous, that is, two per cent, interest was paid in advance in addition to the eight per cent, agreed to be paid by the terms of the note, and by reason of this the entire transaction is tainted with usury, and the appellant can only recover the lawful interest, that is, such interest as if no rate had been agreed on. This opinion is substituted for the one already rendered, as it is manifest that only six per cent, interest should be allowed.

Judgment reversed and cause remanded.  