Webb v. Southern Trust Company
| Decision Date | 18 December 1928 |
| Citation | 227 Ky. 79 |
| Parties | Webb v. Southern Trust Company. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Todd Circuit Court.
PETRIE & STANDARD for appellant.
SELDEN Y. TRIMBLE for appellee.
Affirming.
On June 1, 1923, H.E. Webb executed to the Southern Trust Company a mortgage on his land to secure $43,000, evidenced by notes for that amount payable ten years after date, with interest at 5 1/2 per cent., payable semiannually. He also executed another note for $1,200, secured by a second mortgage on the same land in the same transaction. The second note bore interest at 6 per cent. The consideration really paid Webb for these notes was in all $42,050. After the loan had run about three years, Webb was behind with the interest, and the company was threatening to sue and foreclose the mortgage. Webb then borrowed the money from another company, and paid off the mortgages with interest to that time, amounting to $51,877.30, and in addition thereto he paid $250, which the company charged for the release of its contract running ten years. Within a year after this payment was made, Webb brought this action to recover of the trust company, charging that $2,053.39 was collected from him as usury over and above what he owed. Proof was taken; the circuit court gave judgment against Webb, dismissing his petition. He appeals.
These questions arise on the appeal: (1) Had the Todd circuit court jurisdiction of the action? (2) Was the original contract usurious? (3) Was the cancellation charge usurious or without consideration
1. Webb signed a writing in Todd county by which he employed the Southern Trust Company as his agent for the purpose of securing for him the loan in question, it to have the property appraised by an appraiser, have the title examined and an abstract made, and also prepare the mortgage and notes. By this contract he agreed to pay the company a commission of 5 per cent. on the amount of the loan. The company in Louisville prepared the papers, then had the title examined and had the land appraised, and sent the papers to Webb in Todd county to be executed. He there signed the notes and acknowledged the mortgages. The mortgages were recorded. The company then sent him a check for the money which was delivered to him in Todd county. Before the transaction was concluded, the president of the company came to Todd county, examined the property, and made some changes in the writing before it was signed by Webb. On these facts the contract was made in Todd county, for not only was the money paid there, but the mortgages and notes were executed there, and the contract first became binding when Webb signed and delivered the papers in Todd county. But it is insisted for appellees that Webb's action is for money paid as usury in Louisville, and that this cause of action is not upon the contract made in Todd county, but a cause of action in assumpsit, arising upon the payment in Louisville three years later. By section 72 of the Code an action against a corporation may be brought in the county in which its place of business is situated or in which its chief officer resides, or, if it be upon a contract, in the county in which the contract is made or to be performed. The place of business of the trust company is in Louisville. Its chief officer resides there. The only ground upon which jurisdiction in the Todd circuit court may be maintained is that this is an action upon a contract which was made or to be performed in Todd county. In Louisville Savings, Loan & Building Ass'n v. Harbeson, 51 S.W. 787, 21 Ky. Law Rep. 278, the association was doing business in Louisville. It lent money to a number of people in Fleming county, who brought suits to recover money they had paid as usury. Holding that the Fleming circuit court had jurisdiction, the court said:
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