Elliott v. . Sugg , 115 N.C. 236 ( 1894 )

There were numerous exceptions to the report of the referee heard before his Honor below, who adopted and affirmed the several findings of fact, and found other and further facts as (241) a foundation of the judgment rendered, but there were no exceptions to the findings of the judge. The simple entry is "Defendant Sugg appealed to the Supreme Court," and the record is sent up without any assignment of errors as made by his Honor. The plaintiffs would be entitled to have the judgment affirmed. We may say, that upon the examination of the record and the exceptions before the referee, we find the principal contention to be that it was error to have found that the purpose and intention of the plaintiffs in entering into said contract was the prosecuting their business as cotton factors and commission merchants, and not to evade the usury laws of this State and obtain a larger rate for the use of money advanced than that fixed by law upon special contract at 8 per cent. And the ground of plaintiff's contention is that there was no testimony to support this finding. Upon examination of the evidence sent up, we think there is evidence tending to establish the truth of the finding of the purpose of the plaintiffs in making the contracts in the contracts themselves, which set forth the objects in view. And the evidence tends to establish the second proposition that there was no intent to evade the usury laws, in the fact that no usury was charged upon the advances made by plaintiffs to the defendant, unless it be that the provision in the written contract for the payment of a penalty for failure to ship the cotton which the defendant contracted to ship to plaintiffs had in itself the taint of usury. This point was incidentally before this Court in Arrington v. Goodrich, 95 N.C. 462, but was not necessary to be decided. Reference was then made toMathews v. Cole, 70 N.Y. 239, where it is said that "Such an arrangement was not necessarily usurious to be so adjudged on the face of the contract, but the intent must be shown to secure a larger interest on the loan, and this a device resorted to give it effect. In the absence (242) of any such evidence aliunde, the contract must be declared legal and valid."

And in Cockle v. Flach, 93 U.S. 344, the Court held that such provision is not so conclusive that the court ought to have held, as matter of law, that it was usury.

Affirmed.