
    White v. Stillman et al.
    
    It is error to submit, to the jury, upon a question of usury, whether the first taker of the note in suit sold it as the agent or broker of the maker, such taker having himself advanced money upon the note, and having, in his negotiations with the maker, stated that Tie should have to charge one and a half per cent a month for discounting, though he also spoke of procuring it to be discounted for the maker.
    Action- on a bill of exchange for $4,565, drawn by one Lowber on the defendants, and accepted by them. The answer averred that it was an accommodation draft, “drawn and accepted for the joint benefit of the drawer and acceptors,” and placed in Lowber’s hands to be indorsed and negotiated: that Lowber procured it to be discounted at a usurious rate by one Hotchkiss. Upon the trial Lowber was a witness, and began his testimony with the statement that Hotchkiss represented that “ he could get the money on our paper.” He also said that Hotchkiss stated that he could not tell whether he would have to charge one and a half per cent or more. ■ After this, meeting Hotchkiss in Wall street, the latter said that if he (Lowber) had a draft on the defendants, he could give the money upon it. Lowber told him that he had no draft himself, but would inquire of the defendants whether it would be an object for them to have the money. Hotchkiss waited while the witness went to make the inquiry. Upon receiving the answer, Hotchkiss said that if the witness would bring him the draft he would give the witness the money. The draft w'as drawn and accepted, and taken to Hotchkiss, who, saying that he would have to charge one and a half per cent a month, perhaps more, gave his own check for $2,000 (which the witness said was all that was wanted that day), and five days afterwards gave him the further sum of $2,192.60. On the day the $2,000 was paid, one Tempest bought the draft in the street, for what sum it did not appear. He passed it at once to the plaintiff.
    The judge charged the jury that it was a question, upon the testimony, whether Hotchkiss took the paper and loaned the money on his own account, or acted as the agent or broker of Lowber to raise the money for him; and that if they should find that Hotchkiss acted as the agent of Lowber, and did not loan the money himself, then, as there was no evidence that Hotchkiss had disposed of the paper at a usurious rate of interest, the plaintiff was entitled to recover. The defendant excepted to the charge. The plaintiff had a verdict and judg. ment, which having been affirmed at general term in the second district, the defendant appealed to this court.
    
      John N. Whiting, for the appellant.
    
      James L. Campbell, for the respondent.
   Gould, J.

The plaintiff’s point, that the answer says the draft was drawn “for the joint benefit” of Lowber and Still-man & Co., and so was not an accommodation draft, and, therefore, could be sold at any rate of discount, has no force; since it is entirely plain, from the whole proof, that the note was, as between Lowber and Stillman & Go., entirely without consideration—mere paper, made to raise money upon: and that it had no inception until the money was advanced upon it. This proof was put in without objection; and, had it been objected to, the answer could, and should, have been so amended, on the spot, as to meet the proof. Under these circumstances, this court will not regard the variance, but will proceed upon the case as proved.

We are, then, to proceed upon the ground that, if the transaction with Hotchkiss was such a disposition of the paper as' to give it an inception, that inception was clearly usurious, and the note is void. And the only point upon which we are to pass, is the soundness or unsoundness of the exception to the judge’s leaving to the jury (by his charge), as a matter of fact, the question whether, in taking the note, Hotchkiss acted as Lowber’s agent to sell the note to some other person, or was himself the taker of the note. The defendants claimed that there was no evidénce to show that Hotchkiss acted as such agent, and that the judge should have so decided, as matter of law. And taking the whole testimony as to Hotchkiss’ course, it would seem that the defendants were right. For, though it is true that Hotchkiss spoke of getting, or raising, the money on such paper, he also spoke of “ finding it difficult to use it, or get it discounted, at the banksand in everything which he said about the rate of discount, he said “ he should have tó charge”—“he should have to deduct” one and a half per cent (a month). He drew his own check, at the time of agreeing to take it, for part of the avails, and subsequently gave his own check for the balance; and in neither case suggested that he was not the purchaser. It will hardly do for courts, in administering the law as it is, to lean so strongly against a defence which the statute makes good as to call this transaction, or allow a jury to call it, one in which there is any evidence that Hotchkiss acted as the agent of anybody; for agency is a fact to be found from evidence, not speculated upon to avoid the effect of what is proved.

The judgment of the Supreme Court should be reversed, and a new trial ordered.

Judgment reversed, and new trial ordered.  