Lee v. Keys

• Court: Pennsylvania Supreme Court
• Writing for the Court: Paxson
• Citation: Lee v. Keys, 88 Pa. 175 (Pa. 1879)
• Decision Date: 06 January 1879
• Parties: Lee <I>versus</I> Keys.

88 Pa. 175

Lee versus Keys.

Supreme Court of Pennsylvania.

November 21, 1878.

January 6, 1879.

November 21st 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas of Washington county: Of October and November Term 1878, No. 150.

Dougan & Todd and James P. Sterrett, for plaintiff in error.— Exceptions to the finding of facts by auditors are frequently determined in this court. The referee having made the testimony a part of his report, we have excepted to the correctness of his finding that Berry was the agent of Lee, in the purchase of the mortgage and in the negotiations which preceded the purchase.

L. McCarrell, for defendant in error.—The question of fact as to whether Berry was acting as the agent of the defendant in this transaction, and the extent of his authority, was submitted under the evidence to the referee; his findings thereon are as conclusive as the verdict of a jury in a case tried before the court, and will not be reviewed by this court: Fall Creek Coal and Iron Co. v. Smith, 21 P. F. Smith 230; Jamison v. Collins et al., 2 Norris 252. In the case at bar there are no rulings made by the referee during the hearing before him now before this court by proper exceptions, and his findings, to which exceptions are made, are conclusive and not the subject of review.

Mr. Justice PAXSON delivered the opinion of the court, January 6th 1879.

It is not denied that the plaintiff in error after the maturity of the mortgage, received more than six per cent. interest. His confession of judgment in the court below for the sum of $101.05, is an admission of this fact. But it was contended that as to the sum of $630, the difference between the face of the mortgage and the amount the mortgagor received therefor, the taint of usury does not attach for the reason that the plaintiff purchased said mortgage in the market of a broker, and upon the faith of a certificate signed by the mortgagor that he had no set-off or defence to the mortgage. The difficulty in the way of this view of the case is that the referee has distinctly found that Berry was the agent of the plaintiff in error in the transaction, and that it was a direct loan by plaintiff through his agent, to the defendant in error at a usurious rate of interest. The whole case turns upon this question of fact. Error has been assigned to the finding of the referee upon the facts. But this is a writ of error under...