RICHTER JEWELRY CO., Inc., v. SCHWEINERT, 169 So. 750

PER CURIAM. In this cause Mr. Chief Justice WHITFIELD, Mr. Justice TERRELL, and Mr. Justice DAVIS are of the opinion that the decree of the circuit court should be reversed, while Mr. Presiding Justice ELLIS, Mr. Justice BROWN, and Mr. Justice BUFORD, are of the opinion that the decree of the circuit court should be affirmed.

When the members of the Supreme Court sitting six members in a body, and after full consultation it appears that the members of the court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the decree should be affirmed. Therefore it is considered, ordered, and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the circuit court in this cause be, and the same is hereby, affirmed. Affirmed. WHITFIELD, C.

J., and ELLIS, TERRELL, BROWN, BUFORD, and DAVIS, JJ., concur. TERRELL, Justice. In December, 1922, appellee applied to appellant for a loan of $3,500, offering a diamond and platinum bracelet as security. Appellant being a small loan company as well as a jewelry company responded that it did not have the funds on hand and could not loan that amount, but Mr. J. A. Richter, an officer of appellant, told appellee that if she would come back the next day he thought he could make arrangements to secure a loan for her if she would compensate him for the service of securing it.

Appellee returned the following day, and Richter (advised her that he would let her have $2,500 on her bracelet, the loan to run six months -at 10 per cent, per annum, interest payable monthly. The money to make the loan was secured by Richter from a Miami bank for which he charged a fee of $300. This proffer was accepted, the loan of $2,500 was turned over to appellee, and the bracelet was deposited with appellant as security.

The interest was paid monthly and the fee of $300 for securing the loan was divided into four equal payments and paid at the same time the first, second, third, and fourth interest installments were paid. It was agreed that if the loan was repaid before maturity the fee of $300 would be prorated and such part as represented the time not used would be returned to appellee.

Soon after the expiration of the time for which the loan was made, appellee, as 'complainant, brought this suit in equity praying that the contract for the loan be canceled, that her. bracelet be returned to her, and that appellant, who was defendant below, be restrained and enjoined from making or attempting to make any sale or disposition of said bracelet. To the bill of complaint, answer and counterclaim were filed on behalf of defendant, a replication was tendered to the counterclaim, testimony was taken, and on final hearing the relief prayed for was granted.

From the final decree so entered this appeal was prosecuted. The decision of the chancellor was predicated on a finding that the appellant was at the time of making the loan a corporation lending money in Dade county, Fla., and that it willfully and knowingly charged the appellee on the instant loan a sum of money in excess of 25 per cent, per annum on the sum loaned contrary to

section 4855, Revised General Statutes of 1920,

section 6942, Compiled General Laws of 1927, as follows: “Any person, association of persons, firm or corporation, or the agent, officer or other representative of any person, association of persons, firm or corporation lending money in this State who shall wilfully and knowingly charge or accept any sum of money greater than the sum of money loaned, and an additional sum of.money equal to twenty-five per cent, per annum upon the principal sum loaned, by any contract, contrivance or device whatever, directly or indirectly, by way of commissions, discount, exchange, interest, pretended sale of any article, assignment of salary or wages, inspection fees or other fees or otherwise, or for forbearing to enforce the collection of such moneys or otherwise, shall forfeit the entire sum, both the principal and interest, to the' party charged such usurious interest, and shall be deemed guilty of a misdemean- or, and on conviction, be fined not more than one hundred dollars, or be imprisoned in the county jail not more than ninety days, or both, in the discretion of the court.” Appellant urges four questions for consideration, but in our view the case turns on the question of whether or not J.

A. Richter can, withqut violating the statute as above quoted, make a personal charge of $300 for services in securing the loan for appellee which he made in the name of appellant who.charged 10 per cent, interest on the sum loaned. In other words, under the facts stated, can Richter represent the borrower in securing the loan and the lender in making it without violating the prohibition against usury. The amount of the loan, the rate of interest charged for it, the time it was to run, the security pledged, the fee charged to secure it, and the payments made on interest and fee are not disputed.

The evidence is at variance as to the agreement for a fee to secure the loan and as to some other details with reference to the transaction. It is admitted that if the fee charged for securing the loan is added to the interest charged, the amount is usurious. The law will not infer a usurious contract. There must be an intention willfully-and‘knowingly to charge or accept a sum 25 per cent, greater than the sum loaned. If neither party intended to make a usurious agreement but acted bona fide and innocently, the law will not imply a corrupt agreement.

Where the contract on its face imports usury by an express reservation of more than legal interest, there is no reason for presumption because the intent is apparent. If, on the other hand, the contract on its face is for legal interest only, then it must be proven that there was some corrupt agreement or device or shift to cover usury and that it was in contemplation of the parties. Bank of United States v. Waggener, 9 Pet. (U.S.) 378, 9 L.Ed. 163.

The law seems well settled that where a contract for a loan provides for the rendition of services by the lender to the borrower, a fair charge for the services, in addition to the legal rate of interest on the money loaned, does not render the contract usurious. Wicker v. Trust Company of Florida, 109 Fla. 411, 147 So. 586; Brown v. Harrison, 17 Ala. 774; Houghton v. Burden, 228 U.S. 161, 33 S.Ct. 491, 57 L.Ed. 780; Matthews v. Coe, 70 N.Y. 239, 26 Am.Rep. 583; 27 R.C.L. 231.

These cases treat situations somewhat different from that in the case at bar, but they establish the rule as contended for by appellant* The test is whether or not the lender performed a service to earn a fee besides interest and whether or not the borrower agreed to pay' it. On this point the evidence is in conflict. It is conclusively shown that appellee secured the loan, that appellant did not have the money to loan until J. A. Richter went out in the, market and secured the money on his indorsement for appellant to make it.

Appellee denies agreeing to pay Richter for this service, but Richter asserts that she did, and it is a fact that she paid the amount of the fee in four different installments and did not complain until a third party told her she was paying usury. In determining usury, courts will disregard the form of the transaction and look to its substance. The record here conclusively shows an intent to charge a fee for services in procuring the loan which was satisfactory to both parties, it also shows a service performed to earn the fee. The contract on its face is not usurious.

With the fee deducted there is no charge of usury. When the record shows a consistent purpose to 'make a contract for a fee rather than a purpose to^ circumvent the usury law and a service performed extrinsic to the loan to earn the fee, it will take more than the contradictory evidence of the party who secured and used the money to overcome such a showing. If it be shown that an agreement to pay a fee to secure a loan is nothing more than a sham or ruse to evade the usury law, then the courts should so hold; but the burden is on the one making such a charge to prove it conclusively.

That burden was not carried in this case and the record preponderates in favor of the bona fides of Richter’s agency. The contract to secure the loan was separate and distinct' from the contract to make the loan and the parties to them were different. The law approves such a charge when legally made and the service performed was proven beyond question and was performed by the consent of appel-lee. If appellant had had the money, the result might be different, but not so where he goes out and borrows it on his personal indorsement.

The usury statute, as here quoted, does not outlaw such a contract as the facts of this case exhibit. It is next contended that the final decree is fatally defective because it does not make a finding of fact to support the conclusion of law as set out therein. This contention is wholly without merit.

Section 66 of the 1931 Chancery Act, c. 14658, provides in effect that final decrees may not contain the pleadings or any part of them, the findings of the master, nor any finding of law or fact. As to its form we find no error in the final decree. Other assignments are foreign to the real issues in the cause and will not be treated. WHITFIELD, C. J., and DAVIS, J., concur. ELLIS, P. J., and BROWN and BUFORD, JJ., dissent.