Applebaum v. Laham
| Decision Date | 10 March 1964 |
| Docket Number | No. 63-422,63-422 |
| Parties | Herman APPLEBAUM and Martin A. Miller, Appellants, v. Jean LAHAM and Florida Business Leader, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Bernard B. Weksler, Miami, for appellants.
Henry G. Simmonite and Garland M. Budd, Miami, for appellees.
Before BARKDULL, C. J., and HORTON and HENDRY, JJ.
This is an appeal from a final decree rendered in a transaction involving allegations by the appellee, Jean Laham, that a note he had executed to the appellant, Herman Applebaum, was tainted with usury. Many factors of this case have become moot by the passage of time, and the only question remaining is whether or not a $3,000.00 payment extracted from the appellee as the time of the execution of the note was usury or a payment on principal, as determined by the chancellor.
In reference to the $3,000.00, the chancellor made the following findings of fact in his decree:
'* * *
'All parties admit that on January 28, 1963, Plaintiff, JEAN LAHAM, individually, executed a Collateral Note dated that date for the sum of $15,000 payable to Defendant, HERMAN APPLEBAUM at the office of MARTIN A. MILLER, 6 months after date, with interest at the rate of 10% per annum payable at maturity. This note was secured by, among other things, all of the stock owned by JEAN F. LAHAM in FLORIDA BUSINESS LEADER, INC., which amounted to 98% of all of the stock of the corporation. * * *
'* * *
'The record discloses that the negotiations for the $15,000.00 loan were originated through MARTIN A. MILLER and that MARTIN A. MILLER, throughout, as HERMAN APPLEBAUM'S agent, had the duty and authority of supervising the conditions under which the loan would be granted, the approval of the instruments evidencing and securing the loan and the subsequent supervision of the security and collection of the loan.
'The Court is of the opinion that, throughout the transaction, MARTIN A. MILLER, acted as the regularly employed Agent of the Defendant, HERMAN APPLEBAUM, and his identity in the transaction cannot be divorced from the identity of the lender, HERMAN APPLEBAUM. The Court finds, as a matter of fact, that on the 28th day of January 1963, MARTIN A. MILLER exacted the sum of $3,000 from the borrower, JEAN LAHAM, out of the proceeds of the loan by way of commission, although he was never the Agent of JEAN LAHAM but, throughout, acted as the Agent of HERMAN APPLEBAUM; and the court is further of the opinion that the Defendant, MARTIN A. MILLER, cannot be permitted, under our Statutes, to be the employed Agent of the lender and, at the same time, make a profit for himself by exacting a bonus or commission from the borrower, since our Statute reaches the acts of the lender's agent as well as those of the lender himself. The Court finds that the bonus or commission exacted by MARTIN A. MILLER amounts to interest on the loan at the rate of 40% per annum and this, together with the interest of 10% per annum exacted by the specific terms of the Note itself, makes the total interest exacted or demanded amount to 50% per annum and thus exceeds the interest allowed by our Statute.
'It becomes necessary to determine whether the usury statutes have been violated by the Defendant, HERMAN APPLEBAUM. The record shows that HERMAN APPLEBAUM is not either a professional or a frequent money lender. The record does not show that he had any actual knowledge of the exaction of $3,000 perpetrated, as aforesaid, by his agent MARTIN A. MILLER. In assessing the 'intent' or 'motivation' of HERMAN APPLEBAUM in the transaction, the Court finds no justification for imputing knowledge of, or complicity in, that exaction, to the Defendant HERMAN APPLEBAUM. It follows that, that Defendant is not...
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General Capital Corp. v. Tel Service Co.
...needle of usury in a haystack of subterfuge will not avail to prevent its pricking the body of the law into action.' In Applebaum v. Laham, Fla.App.1964, 161 So.2d 690, there was a loan of $15,000 drawing 10% Interest, but a $3,000 commission was taken out of the proceeds of the loan by the......
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...Schweinert, 125 Fla. 199, 169 So. 750 (1936) (on rehearing); Feemster v. Schurkman, 291 So.2d 622 (Fla. 3d DCA 1974); Applebaum v. Laham, 161 So.2d 690 (Fla. 3d DCA 1964). The latter two decisions add a refinement to the stated principle by the holding that usury will be presumed when the a......
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Feemster v. Schurkman
...lender to rebut the presumption that his agent acted without the scope of his authority in making the usurious charge. Applebaum v. Laham, Fla.App.1964, 161 So.2d 690. In the case sub judice, appellee has failed in his burden to rebut the above presumption. In fact, he testified that the le......