Smythe v. Allen

Citations

• 67 Miss. 146

Syllabus

<p>1. Usury. Paying note of debtor. Instruction.</p> <p>If one person, at the suggestion of another, takes up a note of the latter in the hands of a third person, paying less than the face of the note, and afterwards collects from the maker the full.amount of the obligation, so that more than ten per cent, per annum is realized, the transaction is . not necessarily usurious, and an instruction stating that it is usurious should not be given if there is evidence tending to show, that the money was not advanced as a loan, but that there was simply a purchase of the note.</p> <p>2. Same. Inadvertent overcharge of interest. Intent.</p> <p>On an issue as to usury, where there is evidence tending to show that an overcharge of interest complained of was the result of mere inadvertence in making notes payable a short time before it was intended they should be, it is error to instruct a jury that no express contract to pay usury is necessary, and that if the effect is that one realizes more than ten per cent., all interest is forfeited.</p> <p>3. Same. Violation must be intentional.</p> <p>The law against usury being penal, mere mistake in fact, error in calculalation, or inadvertence in the insertion of date will not make a contract usurious. There must be an agreement by which the debtor knowingly gives or promises, and the lender knowingly takes or reserves, excessive interest, with intent to violate the statute. Banky. Snodgrass, 4 How. 573, cited.</p>