Forman. At that time Homer Needles rep-financing of said venture, and the said Elliott resented the property to be worth $100,000. desiring to have repaid to him the $5,000 so adThe $25,000 was needed to improve the prop-vanced by him, with interest, said parties entererty and pay off the Harris mortgages, and ed into a loan contract with said plaintiff, as also to pay Elliott his $5,000; and he him- evidenced by the note and mortgage above menself wanted $1,000 of his cash advance reim- the plaintiff and the defendants, evidenced by tioned; that as a part of the contract between bursed. There was some delay in negotiating note and mortgage which are exhibits to the the loan of the $25,000. It was finally, how-petition in defendants' action, the defendant ever, agreed that, if the $25,000 should be ad- Homer Needles proposed to the plaintiff that, if vanced by the plaintiff, the Elliott interest he (the plaintiff) would make the defendants a would be paid out of the funds so advanced, loan of $25,000, the defendants would permit and that this interest would be assigned to him to reserve out of said loan the sum of the plaintiff. Homer Needles returned to $5,400, with which he could purchase the interMuskogee, and the necessary papers were tion was accepted by the plaintiff as a bonus for est of Elliott in said venture; that said proposiprepared; that is, Homer Needles, H. M. the making of said loan, and that thereupon Needles, and Grubbs executed their note to the note for $25,000, bearing interest at 10 per the plaintiff for $25,000, with interest from cent. from date, and the mortgage securing the the date thereof at 10 per cent. per annum; payment of the same, were executed; that and to secure the note a mortgage was given thereupon the amount of $19,600 was turned covering the entire property composing the over to the defendants, or upon their direction, town site, less the lots that had been thereto- and that this amount was the only money refore disposed of. The papers were then for- ceived by them for the execution and delivery of warded to St. Louis to an attorney by the the $25,000 note; that with the $5,400 reserved by plaintiff out of the total sum loaned the name of Phillips; he having been agreed up- plaintiff purchased the interest of Elliott in said on by all the parties concerned. The Elliott venture and took from the said Elliott a quitinterest was assigned to the plaintiff, the claim deed executed by Elliott to the plaintiff amount paid for this interest being $5,400; for all the interest which the said Elliott owned $11,000 was paid to satisfy the Harris mort- in said land or venture; that the reserving of gages; the balance was forwarded to a bank the $5,400 by said plaintiff out of said note and in Muskogee and deposited to the credit of which he paid to said Elliott for Elliott's inHomer Needles, trustee. a bonus to the said plaintiff in It appears that terest was $1,000 of this sum was used by the trustee in addition to the interest at 10 per cent, charged by him. The court further found that said the repayment of that amount theretofore ad- stipulation for 10 per cent. interest on said full vanced by the trustee. The balance was used sum of $25,000, in view of the fact that the in the improvement of the town site. The said plaintiff reserved as a bonus the sum of first year's interest on the $25,000 was paid $5,400 out of said note, made the loan usurious, with the proceeds of lots sold by Homer and that the same is usurious; that the agreeNeedles, the trustee. When the next year's ment so made and said charge for interest at interest became due, the parties were unable said rate was made by said plaintiff with a full to pay the same, and borrowed from the knowledge of the facts that the same constituted plaintiff an additional $4,000, which was used a benefit to him as compensation for the use of to pay the second year's interest, together his money at a greater rate than the rate of Wherefore said with other expenses that had been incurred. interest permitted by law. This $4,000 was secured by the interest of E. The court found that the amount of usury was by the plaintiff knowingly charged. B. Grubbs and H. M. Needles in the town site. usury charged by the plaintiff for said loans, inOn June 5, 1914, plaintiff filed his petition cluding the $5,400 reserved out of the original praying for judgment against the defendants note, together with interest on the note at 10 Homer Needles, E. B. Grubbs, and H. M. per cent. per annum, amounted practically to Needles for the amount due on the two notes, $18,160; that to double this sum as a penalty together with interest and attorney's fees, for usury would amount practically to $36,320, and for foreclosure of the mortgages. The which was far in excess of the amount of money main defense relied upon by the defendants loaned by these defendants. The court found as was that the notes sued on were tainted with conclusions of law that both of the notes executed by the defendants were tainted with usury, and for that reason plaintiff should usury; that, when the amount of usury chargnot be entitled to recover. The cause was ed and collectible was doubled, it was far in tried and submitted to the court, a jury being excess of the amount of money advanced by the waived, on the 22d of May, 1915, and the case plaintiff to these defendants; that the defendtaken under advisement by the court. ants should not have an excess judgment over November 9, 1916, the court filed his findings against the plaintiff for the excess of usury of fact and conclusions of law. It is not nec- charged, for the reason that there was not a essary to set out in full the findings of the cross-petition and affirmative relief asked for by defendants; that the plaintiff should take nothcourt. We shall only refer to those portions ing by this action; and that both of the abovewhich, in our judgment, are necessary in described mortgages should be canceled and reaching our conclusions in the premises, as held for naught." follows:

On

"That on or about December 3, 1910, the

[2] It will be observed that the court found

(188 P.)

est of Elliott, which was assigned to theer the payment of the amount he had advancplaintiff, was received by the plaintiff as a ed; in fact, there was no method known by bonus for the use of the money loaned, in ad- which the value of this one-fourth interest dition to the highest rate of interest permis- could he ascertained, except after the sale of misible by the law. A jury being waived, the the lots. In 39 Cyc. 959, it is stated: findings of the court are entitled to the same weight and consideration that would be given to a verdict by the jury, and if there is any evidence including any reasonable inference tending to support the findings,. this court will not reverse for insufficient evidence. The only evidence upon which the claim of usury can be based is that of Homer Needles,

in which he says:

"I explained to him [plaintiff] the situation as it stood at the time. We had originally bought the property, Mr. Grubbs, my father, and Mr. Elliott, and myself, and that we needed some money to pay off the purchase price, one thing we paid, and that it would soon be due, and put some improvement on the property so it could be sold and to a better advantage, and I stated I would take over the $5,400 and buy

the interest of Mr. Elliott, who left the country, and give it to Mr. Forman as a bonus for making the loan."

"Where the lender is to receive something else than money for his loan, as property or services, the value of such profit being necessarily uncertain, the contract is not usurious, even though the probable value is greater than legal interest, unless the consideration so given is so palpably in excess of the certain profit allowed by law as to show a corrupt intent to violate the usury law"-citing Snapp v. Cobb, 60 Ark. 367, 30 S. W. 349; Young v. Miller, 7 B. Mon. (Ky.) 540; McGinnis v. Hart, 4 Bibb (Ky.) 327; Rains v. Kemp, 4 La. 318.

[3] In determining whether or not a contract, lawful upon its face, is usurious, and when two constructions of the transaction are possible, one for and the other against usury, the one against usury will always be adopted. In Deming Inv. Co. v. Grigsby, 163 Pac. 530, it is said:

"The rule *

as we understand it to be is laid down in the case of German Savings Bank & Loan Ass'n v. Leavens, 89 Wash. 78, 153 Pac. 1092, that: 'In determining whether or not a given contract for the payment of money is usurious, it is clearly the rule that where the contract is susceptible of two constructions, the one lawful and the other unlawful, the former will be adopted. is on the theory that presumptions of law are in favor of good faith. Men are presumed to intend to keep within the law, and, if their contracts can be enforced within the law, the law will presume such was the intent, and so consider it.'"

Further quoting from 39 Cyc. 971:

This

If this agreement had been carried out as stated by Mr. Needles, and the interest of Elliott had been secured, or had been transferred to the plaintiff, without regard to the remaining three-fourths, then it might be that the transaction would be usurious; but, when the mortgage was executed to secure the payment of the $25,000, the plaintiff's one fourth was included in the mortgage; in other words, when lots were sold and the interest paid, plaintiff paid one-fourth of the amount. If the entire town site had been sold and only brought sufficient to pay the amount due plaintiff with the interest thereon, then the plaintiff would only receive 10 per cent. upon "But the mere fact that the lender accepts a the amount advanced. While Elliott's inter- gift from the borrower, while a suspicious cirest was assigned to him, it was treated as the cumstance, will not render the loan usurious, if property of the partnership, or as belonging by the lender. Nor will a collateral transaction such gift be really voluntary, and not required to the joint venture, and, as we have seen, between the borrower and lender, whereby the was included in the mortgage executed to se- lender may take profit, render the loan usurious cure the money advanced. Before plaintiff when such transaction was entered into in good would be entitled to share in any of the prof- faith and without usurious intent. In fact, the its by reason of his interest in the town site, general principle governing all the cases is it would first be necessary to liquidate this that, when the lender has rendered the borrower indebtedness, and plaintiff's one-fourth inter- any bona fide service, or conferred upon him est would have been used in making the pay- some real benefit, even though it be in connecment of principal and interest. On the other tion with the loan, the borrower's promise to hand, suppose the parties had borrowed from will not, in the absence of usurious intent, rencompensate the lender for such service or benefit plaintiff the $19,600 at 10 per cent. interest, der the transaction usurious. And the burden and this amount repaid by Homer Needles, rests upon him setting up usury to show that H. M. Needles, and Grubbs, Elliott's interest a commission or other thing of value alleged not being considered, then the interest would to have been promised or received, in addition amount to $1,960. As it is, when the interest to principal and legal interest, rests upon a on the $25,000 was paid, one-fourth being usurious consideration. The presumption is paid by plaintiff, the other three only paid that such added benefit rests upon an independent and legal consideration." $1,875, being less than they would have paid had they received $19,600 at 10 per cent. and eliminating the Elliott interest.

As we have said, plaintiff had no beneficial interest in the proceeds of the sale of the lots, except as affected by the mortgage, until aft188 P.-69

The plaintiff did not hold back the $5,400 with which to purchase the interest of Elliott. On the contrary, the check for the full amount was delivered to Mr. Phillips, the attorney selected by all the parties. He receiv

Mr. Needles.

To

ed his instructions largely from Homer Nee-[personal service, increased in value by their dles, and was paid his fees by Homer Needles. character for integrity and experience. The plaintiff had never seen Elliott, did not both these sources they looked for their profits, know him, had no direct dealings with him, and they were necessarily united. and the $25,000 was disbursed as directed by was lawful for them, while loaning their money "It was a necessity of their trade, and it at a specified rate of interest, to stipulate with the parties to whom it was loaned for the incidental advantages of acting as commission merchants for the sale of the property in which the money was to be invested by the borrower. They had the right also to require, as a condition of the loan, that it should be invested in in selling and handling it. All this is admitted. such property as would require their services

[1] In arriving at the understanding and intention of the parties, we should consider the circumstances surrounding them at the time. Homer Needles, H. M. Needles, and Grubbs found that they were not possessed of sufficient means to make their venture profitable. The mortgage for the balance of the purchase money was falling due. The cry was heard, "Come over into Macedonia and help us." H. M. Needles, the father of Homer Needles, had known the plaintiff for 25 or 30 years. The proof discloses that they were old friends. There is nothing in the evidence indicating that the plaintiff was of a grasp ing disposition, or that he exacted from the defendants anything more than the legal rate of interest upon the amount borrowed. He was to wait until after enough of the property mortgaged was disposed of to pay the money borrowed before it could be ascertained whether the one-fourth interest secured from Elliott was of any value whatever.

"We see no reason why the parties could not go a step further, and stipulate that if for any reason operating in the interest of the borrower he should prefer to become his own broker or commission merchant, or to sell at home, he should pay the commission which the other had a right to contract for and receive. Like the port pilot, and other instances, they place of business, clerks, and their own time and were ready and willing to perform. They had a skill ready to devote to the plaintiffs' business. In that business they had a large pecuniary interest. They had loaned their money without requiring any other security than the obligation of the other party, except that which might arise from the property coming to their hands. To make this property a sufficient security, the contract required of the plaintiffs that they should invest in the same property $20 of their own money to every $80 borrowed of defendants. The relinquishment of this right to control the sale of the property was a good consideration for the commissions which they would have made if they had sold it."

In Cockle v. Flack, 93 U. S. 344, 33 L. Ed. 949, cited by this court in Garland v. Union Trust Co., 49 Okl. 654, 154 Pac. 676, the plaintiffs were engaged in the business of packing pork in Peoria, Ill., and the defendants were commission merchants at Baltimore. They made an agreement in substance that defendants should advance to plaintiffs as it was needed the sum of $100,000, which they were The case of Blackburn v. Hayes, 59 Ark. to invest in the hog product, adding an in- 366, 27 S. W. 240, was similar in principle to vestment on their own part equal to 20 per Cockle v. Flack, supra, and cites that case. cent. of that advanced by the defendants. The defendants were commission merchants Defendants were to have interest on their ad- in the city of New Orleans and the plaintiffs vancements at 10 per cent. per annum. Plain-cotton planters in the state of Arkansas. tiffs were to ship the products to defendants The defendants advanced to the plaintiffs for sale, and defendants were to have a stipulated commission thereon, but there was a provision that the plaintiffs might sell for themselves without sending to defendants, but, if so, the latter were to have their commissions all the same. When the product had all been sold out and an account rendered, a balance was found to be due defendants of $7,054.48, which was mainly, if not wholly, made up of commissions charged on sales not made by defendants and on products which never came to their possession, and recovered judgment. The recovery was resisted on the sole ground that these commissions were a device to cover usurious interest. The court held that this agreement was not necessarily usurious, and that the profits incidental to handling the products as commission merchants would be sufficient consideration. The court said:

"It is to be considered that defendants were engaged in a business which was legitimate, and in which both custom and sound principle authorized the joint use of their money and their

large sums of money to aid them in raising cotton, which sums plaintiffs agreed to repay with 10 per cent. interest and to ship at least 200 bales of cotton to defendants to be sold by them or in default thereof to pay $1.25 per bale on such number as they failed to ship, and, to secure the performance of the contract, executed a deed of trust on other property. The plaintiffs failed to perform the contract, shipping only 56 of the 200 bales of cotton, and they failed to repay the money advanced to them. In an action to enforce the deed of trust securing the advancements, the defense interposed was usury. It was insisted that the agreement to ship cotton was a device to cover usury, and that the $1.25 was really intended as interest. The chancellor, however, denied this contention and directed the foreclosure of the deed of trust. In its opinion the Supreme Court said:

"The evidence shows that the appellants were cotton planters, engaged in making cotton, and that the money advanced to them was loaned for the purpose of aiding them in this business.

(188 P.)

At the time the contract to ship cotton was entered into, $1.25 per bale was the commission usually charged and received by commission merchants for selling cotton in the city of New Orleans, where the cotton was to be sold; and Hardie & Co. reasonably expected the cotton to be shipped to them. Under the circumstances, the contract was a valid agreement. It was in effect an agreement upon the part of appellants to ship the 200 bales in consideration of the undertaking of Hardie & Co. to sell the same, and in the sale thereof to use due care and skill, and that Hardie & Co. should be entitled to receive and recover the $1.25 per bale, in the event appellants should fail to perform their contract, as liquidated damages sustained by them on account of the breach, and not as interest for the loan of the money. Cockle v. Flack, 93 U. S. 344 [33 L. Ed. 949]; Norwood v. Faulkner, 22 S. C. 367 [53 Am. Rep. 717]; Matthews v. Coe, 70 N. Y. 239 [26 Am. Rep. 583]; Woolsey v. Jones, 84 Ala. 88 [4

South. 190]; Harmon v. Lehman [85 Ala. 379], 5 So. 197 [2 L. R. A. 589]; Dozier v. Mitchell, 65 Ala. 511.”

As we have seen, the value of the Elliott interest could not be ascertained until after the payment of all expenses incurred in improving, selling, and disposing of the land and the payment of the $25,000, with interest. We conclude that the transaction between plaintiff and defendants was not usurious on the part of the plaintiff, as the value of the Elliott interest assigned to plaintiff was purely speculative, indefinite, uncertain, and doubtful.

We are therefore of the opinion that the judgment of the trial court should be reversed and remanded for further proceedings not inconsistent with the views herein expressed; and it is so ordered.

OWEN, C. J., and McNEILL, HIGGINS, and BAILEY, JJ., concur.

WRIGHT V. STATE. (No. A-3390.) (Criminal Court of Appeals of Oklahoma. April 15, 1920.)

(Syllabus by Editorial Staff.) INTOXICATING LIQUORS 242 - SENTENCE

FOR ILLICIT SALE HELD EXCESSIVE.

In a prosecution for violation of the prohibition law, where it does not appear that defendant was a confirmed bootlegger, although it

appeared that he had sold a half pint of whisky, a sentence to pay $500 and to serve six months in the county jail was excessive, and would be reduced to 30 days in jail and a fine of $50 and costs.

Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.

Buzz Wright was convicted of a violation of the prohibition liquor laws, and he appeals. Modified and affirmed.

Harry F. Eagan, of Muskogee, for plaintiff in error.

S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. Buzz Wright was convict ed in the superior court of Muskogee county of selling a half pint of whisky to one Dixie Woodward in the town of Boynton in said county in the month of May, 1917, and sentenced to pay a fine of $500 and to serve six months' imprisonment in the county jail.

In asking a reversal of this cause, counsel for defendant rely exclusively upon the alleged prejudicial error of the trial court in refusing to grant a new trial upon the ground of newly discovered evidence.

We have carefully examined the affidavits attached to the motion for a new trial, setting out the alleged newly discovered evidence, and have considered the same in connection with the evidence of guilt introduced upon the trial of this cause, and find no manifest abuse of the trial court's discretion in overruling said motion.

This conviction is based on the unsupported evidence of the prosecuting witness, and the defendant, as a witness in his own behalf, positively denied making the sale of any whisky to the prosecuting witness. There is no showing that the defendant is a confirmed bootlegger, and the punishment imposed is such as is ordinarily imposed upon those who are shown to be habitual offenders of the prohibitory liquor laws.

Under the circumstances, it is the opinion of this court that the defendant is not entitled to a new trial upon the showing made. but that the ends of justice will be best subserved by modifying the judgment to provide an imprisonment for a term of 30 days in the county jail and a fine of $50 and costs of the prosecution, and it is ordered that the judgment be thus modified, and, as modified, be affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The venue of an offense must be proved as the information, which was overruled and excharged.

For reasons holding the evidence in this A. L. Green testified concerning the matecase insufficient to support the judgment, seerial allegations of the information to the folbody of opinion. lowing effect: