Burke v. Raab

• Decision Date: 31 May 1879
• Citation: 4 Ill.App. 338,4 Bradw. 338
• Parties: DON A. BURKE ET AL.v.GEORGE RAAB ET AL.
• Court: United States Appellate Court of Illinois

4 Ill.App. 338

4 Bradw. 338

DON A. BURKE ET AL.

v.GEORGE RAAB ET AL.

Appellate Court of Illinois, Third District.

May Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macoupin county; the Hon. C. S. ZANE, Judge, presiding. Opinion filed October 2, 1879.

Messrs. PALMER & CHAPMAN, for appellants; that a note with a stipulation for a greater rate of interest than that allowed by law, in case it was not paid at maturity, is not usurious, cited Lawrence v. Cowles, 13 Ill. 577; Smith v. Whitaker, 23 Ill. 367; Bishop Hill Colony v. Edgerton, 26 Ill. 54; Davis v. Rider, 53 Ill. 416; Withrow v. Briggs, 67 Ill. 96; Bane v. Gridley, 67 Ill. 388; Bradford v. Hoiles, 66 Ill. 517; Downey v. Beach, 78 Ill. 53; Gould v. Bishop Hill Colony, 35 Ill. 324.

Mr. C. A. WALKER, for appellees, cited, Sanner v. Smith, Ill. Sup. Ct. June term, 1878, not reported.DAVIS, P. J.

Action on a promissory note. The only evidence offered below on the trial was the following note, with the credits endorsed on the back thereof:

“$115.00. On the 11th day of February, 1868, for value received, we, or either of us, promise to pay B. T. Burke, or order, one hundred and fifteen dollars, and if not paid when due, to bear fifteen per cent. interest from due till paid. February 11th, 1867.” “Cr. by cash, fifteen dollars, March 12, 1868, to be applied first to the interest.”

“Cr. by cash, thirty-one 50-100 dollars, Jan'y 29th, 1870, to be applied first to the interest.”

“Cr. by cash, fifteen dollars, Feb'y 18th, 1871, to be applied first to the interest.” Also fifteen dollars as int., February 14th. 1872. Also fifteen dollars, Feb'y 24th, 1873. Also fifteen dollars, July 7th, 1874. Also fifteen dollars, May 29, 1875. Also fifteen dollars, Oct 4th, 1876. Also fifteen dollars, April 9th, 1877.

The defense was usury, and appellees, to sustain their defense, relied on the face of the note and the credits endorsed. The court below gave judgment for appellees, and appellant appealed. The note upon its face shows a fair and honest transaction of a loan, or an indebtedness of one hundred and fifteen dollars, to be paid in one year from date, with a stipulation that should the amount due not be paid at maturity, the debtors should pay the creditor fifteen per cent. interest, from maturity till paid. This penalty, the debtor could escape entirely by paying the amount of the principal, and in the absence of proof a court will not presume the parties intended to violate the law. Unless, then, the credits afford some evidence of the usurious intention, the contract as expressed in the note must be upheld. The note had matured thirty-one days before the first payment was made, and the creditor was entitled when the payment was made, to fifteen per cent. interest on the principal from maturity of the note. This would amount to one dollar and forty-three cents, making the amount then due, of principal and interest, one hundred and sixteen dollars and forty-three...