Pushee v. Johnson

• Decision Date: 23 March 1936
• Court: Florida Supreme Court
• Parties: PUSHEE et ux. v. JOHNSON.

166 So. 847

123 Fla. 305

PUSHEE et ux. v. JOHNSON.

Florida Supreme Court, Division B.

March 23, 1936

Suit by Jane Watts Johnson against Roy Edward Pushee and wife. Decree for complainant, and defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

B. R Cisco, of Miami, for appellants.

Frank Smathers and Walter C. Dunigan, both of Miami, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review a final decree in foreclosure proceedings in which the defense interposed by the defendants was that the loan secured by the mortgage was usurious, in that the lender violated section 4851, R.G.S section 6938, C.G.L., and was amenable to the forfeiture prescribed by section 4852, R.G.S., section 6939, C.G.L.

Both the master in chancery and the chancellor found against the contentions of the defendants, who are appellants here.

The findings of the master and of the chancellor are set out at some length, but, in short, they are to the effect that the borrower applied to a broker to find a loan of $8,250 and agreed to pay the broker 10 per cent. of that amount for finding the loan; that it was made known to the broker that the loan to avail the borrower had to be procured quickly and the borrower wanted the money for a period of five years. With this agreement between the broker and the proposed borrower the broker approached the lender, over whom he is not shown to have had any influence or control, and applied for the loan as agent for the borrower. The lender would not agree to make the loan for a period of five years, and the broker, being pressed for time in which to find the loan finally agreed with the proposed lender that, if the lender would loan the money to the borrower at 8 per cent. interest per annum for a period of two years, the broker would pay the lender one-half of his 10 per cent. commission. The broker then advised the borrower that he could only get the money for two years at 8 per cent., and that to close the transaction he (the broker) would have to pay the lender one-half of his commission. Thereupon the borrower agreed to take the loan for the two-year period, made the note and mortgage for the $8,250, and the lender deposited that amount in the bank to be paid over to the borrower when the borrower should have been able to show unincumbered title to the property mortgaged and to have paid certain items which were legitimately chargeable to the borrower in connection with the loan as follows:

'$8.20, State Documentary Stamps; $7,551.89 for satisfaction of pre-existing mortgage on the premises; $68.00 to the New York Title & Mortgage Company, representing title insurance, abstracting and recording fees; and the further sum of $10.00 for escrow expenses in settlement of the pre-existing mortgage.'

It was further found that these expenses were paid and that at the direction of the broker the borrower drew his check payable to the broker in the sum of $412.50 and his other check to Mrs. Ada Welch for the sum of $412.50, which check was indorsed to the lender to pay the obligation of the broker to the lender of one-half of his commission for his services in finding the loan. The findings in this regard are as follows:

'I further find that on April 23, 1932, the defendant, Roy Edward Pushee, at the direction of his agent, C. H. W. Read, drew his check for $412.50 on the Miami Beach First National Bank, payable to the order of Mrs. Ada Welsh; that said check was shortly thereafter endorsed by Mrs. Ada Welsh and the proceeds thereof paid over to the complainant. I further find that this $412.50 was one-half of the commission which the defendant Roy Edward Pushee had theretofore promised and agreed to pay to the agent, C. H. W. Read, for his services in procuring the loan. I further find that the said $412.50 received by complainant was received by her after she had paid, unconditionally, the $8,250.00 to the defendant Roy Edward Pushee, and that at the time she received the said $412.50 the defendant Roy Edward Pushee, was not in default under the terms of the note and the mortgage, and that Roy Edward Pushee by drawing the check for $412.50 was acting merely as the paying agent in the discharge of the promise of the agent C. H. W. Read, to the complainant, to divide his commission with her, and that Roy Edward Pushee was not in anywise injured by the receipt by the complainant of the said $412.50, nor was he in anywise pecuniarily affected by said payment; that neither the complainant nor the defendant Roy Edward Pushee intended to take or to give usurious interest. I further find that the complainant, in accepting the said $412.50, believed that she was ----- one-half of the real estate agent's commission, and that she relied upon said real estate agent's advice to her that her acceptance of the said one-half of his agreed commission was entirely legal and proper.' All of these findings, we hold, are justified by the record and the law as applicable to this case. We need not cite authorities at this time to support the statement that, where an appeal is based on questions of fact, the findings of fact by the chancellor will not be disturbed on appeal, where not clearly erroneous or where they do not proceed from a consideration of the evidence in light of inapplicable principles of law.

It is also well settled in this jurisdiction that the borrower may legitimately agree with the lender to pay the actual and reasonable expenses of examining and appraising the security offered for the loan, as well as for title insurance, and the costs of closing the transaction, even though such payments, when added to the interest contracted for, exceed the maximum interest allowed by law. Wilson v. Conner, 106 Fla. 6, 142 So. 606; Hopkins v. Otto et al., 118 Fla. 865, 160 So. 203.

So the only question left for our determination is whether or not in the transaction as above set forth the lender by accepting a part of the commission, which had theretofore been agreed to be paid to the broker without placing any further pecuniary burden on the borrower, constituted a violation of our usury statutes and made the loan such as to cause the lender to be required to submit to the forfeiture provided by section 4852, R.G.S., section 6939, C.G.L.

We hold that the facts in this case do not bring the transaction within the condemnation of the usury statutes. The evidence amply supports the findings of the chancellor that the borrower was obligated to pay the broker 10 per cent. of the amount of the loan for finding the loan. Therefore, when the broker agreed to pay the lender a part of the commission which he would earn, the borrower was not put to any additional expense by reason of that agreement. The loan was made no more burdensome than it would have been had not the lender and the broker come to that agreement, and probably the result of the agreement was for the benefit of the borrower, inasmuch as it enabled the borrower to procure the loan within the time required and without any additional payment by him to the lender than that which the borrower would have been required, at all events, to pay. In support of this enunciation see Dickey v. Brown, 56 Iowa, 426, 9 N.W. 347, 348, where in a case of very similar circumstances and conditions that court said:

'The defendant Brown applied to John Furguson, of Charles City, Iowa, to negotiate for him a loan of $4,000 and agreed to pay him for so doing a commission of 7 1/2 per cent. Furguson forwarded Brown's proposition to Holland, Furguson & Co., of Rockford, Illinois, who, as agents of the plaintiffs, furnished the money and made the loan. They retained $200 as their commission and forwarded $3800 to John Furguson, who retained $100 for his services, and gave the defendant Brown, $3700.

'The defendants claim at least one of the plaintiffs had knowledge Holland, Furguson & Co. received the $200 aforesaid at the time the loan was made, and therefore that the plaintiffs, through their said agents, exacted and received more than ten per cent interest. We are constrained to say this proposition is not well taken.

'John Furguson had the right to do as he pleased with the $300 Brown agreed to pay him. He could, if he saw proper, divide...