Bank of Burlington v. Durkee

• Citation: 1 Vt. 399
• Parties: BANK OF BURLINGTON v. JIREH DURKEE et al
• Decision Date: 01 January 1829
• Court: Vermont Supreme Court

1 Vt. 399

BANK OF BURLINGTON v. JIREH DURKEE et al

Supreme Court of Vermont, Chittenden

January, 1829

This was an action brought upon a note of $ 2000, dated Nov. 9th 1826, and payable in 64 days from the date, and discounted at the Bank the 16th of the same month. There was a jury trial in the County Court, and the defence set up was usury; and the plaintiffs obtained a verdict for the sum due upon the note. It appears from the exceptions allowed at the trial that the testimony offered by the defendants to establish the usury, was, that at the time of the discount, the sum retained for interest, or discount, was $ 21 33, the Bank considering the note to run sixty-four days from the time of the discount: that is, they took interest at the rate of six dollars for $ 100 dollars for 360 days--that this was cast according to the interest tables which always had been used in said Bank; and the cashier did not know of any other tables in existence for that purpose--That the usage of the Bank is to consider the notes due in sixty-four days from the day of discount, and they are so entered on their books. This testimony was objected to by the plaintiffs, and was excluded by the court. The action was removed to this court for a hearing upon the exceptions taken and allowed, showing the above facts.

New trial granted.

Van Ness, for the defendants, contended, 1. That the contract is void by reason of usury, in taking discount for one week too much, as the note would fall due and be on interest in sixty-four days from the 9th day of November, 1826.

2. The note is void by reason of usury in computing the discount on the principle of 360 days to the year.--2 Cow. R. 705, 707 708, 763. Taking discount in this manner, is taking it under a corrupt bargain.--2 Cow. R. 705, 706, 707.--N. C. Stat 162.

Pomeroy, for the plaintiffs. The question now before the court arises on exceptions to the rejection of testimony, by the court below, which the defendants contend would have proved usury. 1. It does not appear by the case that usury was taken by the Bank. The note, although dated the 9th day of November, 1826, was discounted on the 16th day of said Nov. and, by the usages of the Bank, was payable in sixty-four days from the day of discount; and the note was assumed to be dated on that day, and so entered on the books of the Bank, and minuted on the note. The money was paid to the defendants on that day, and made use of by Durkee the same day. The discount received by the Bank was $ 21 33, being the interest on $ 2000, the amount of the note, for sixty-four days, at the rate of 6 per cent. for 360 days. Now, in as much as the defendants received the money on the day of discount, and were not liable to pay the same, until they had the use of it 65 days, including the day of discount, the plaintiffs contend, that they had the right by law to take interest at the rate of 6 per cent. per annum for 65 days, which would in fact exceed the interest taken by four cents. 2. The plaintiffs contend that, should the court be of opinion that an excess of interest was taken, the circumstances of the case, and the trifling amount of that excess, forbids the presumption of intentional taking; and therefore, does not come within the statute against usury. 3. The plaintiffs contend that the maxim of Law, de minimis non cural lex, will apply to the case.

Pomeroy and Adams, for the plaintiffs.

Van Ness and Allen, for the defendants.

OPINION

HUTCHINSON, J.

The plaintiffs have brought their action upon a note of $ 2000 and the defendants contend, that the note is void by reason of usurious interest, taken at the time the note was discounted at the bank.--The question presented in the case is, whether the County Court correctly excluded the testimony by which the defendants would prove usury? The counsel, in presenting authorities and commenting upon them, have extended their views to matters supposed to exist, and not technically within the case, nor noticed on their briefs. The case calls our attention to the testimony offered and excluded. The counsel have slightly noticed some matters that might have come in to rebut, if the testimony of the defendants had been admitted. We understand the subject may probably be up in various shapes, and have no objection to expressing our opinion, as far as formed, upon all that has been reached in argument. It appears, that the interest taken upon $ 2,000 for 64 days, was $ 21,33. That amounts to 29 cents more than if cast for such a portion of a year, as 64 days bears to 365 days. The extra interest amounts to a little less than one day's interest upon the whole sum. It was suggested in argument, that a legal cast of interest upon the note, as it now stands, would operate like applying the interest retained on the day of discount to the first 64 days from the date of the note. But the same testimony, that shows any interest paid, shows it paid as and for the interest for the 64 days from the day of the discount, and that this so appeared upon the books at the bank. This excludes the first week of the note from the cast of interest, and the...