Mr. Frank Koch, for appellee: Plaintiff should have been nonsuited on the opening, or when the defendant tendered himself ready to perform his contract.

In order to permit a recovery it must appear by the conduct of the defendant, or by his declared intention, that he had made a breach of the contract.

Coil v. Wallace, 24 N. J. L. 291.

4, 1908, which was renewed subsequently; that plaintiff relied upon these promises, remained and continued sole and unmarried, and had been and still was ready and willing to marry the defendant. Breach alleged, and damages in the sum of $50,000 demanded.

Defendant in his answer admitted the promise and its repeated renewals, but denied that the plaintiff had been at all times, and was still, ready and willing to marry him, and said, although he, ever since the promise, had been ready, willing, and anx

This was an action at law for a breach of promise of marriage. The complaint statute, as there was a possibility of its being performed within a year.

In Clark v. Pendleton, 20 Conn. 495, it was held that a contract to marry when the defendant returned from a whaling voyage, on which he expected to be absent for about eighteen months, was not within the statute of frauds requiring an agreement not to be performed within one year to be in writing, as it did not appear that the voyage would necessarily occupy more than a year. This conclusion was reached although the voyage did in fact take more than a year. And in Huggins v. Carey, Tex. Civ. App. 149 S. W. 390, it was held that a complaint alleging a contract to marry as soon as the defendant could have a suitable home erected and so wind up his business affairs that he could quit work and take a wedding trip did not state a contract void within the statute of frauds as not to be performed within a year.

So, in Clark v. Reese, 26 Tex. Civ. App. 619, 64 S. W. 783, it was held that the statute of frauds did not apply to a contract to marry when the defendant had built an addition to his place of business, or when the plaintiff had given up her business and moved into a house owned by the defendant, since, so far as appeared, the contract might have been performed within a year.

fix the date for the marriage, that the plaintiff at all times refused to fix a date, or to marry him at any date fixed by him, and he may possibly be performed within a year, and it does not appear that it was agreed that it should not be performed within that time. CORDUAN V. MCCLOUD; Blackburn v. Mann, 85 Ill. 222; McConahey v. Griffey, 82 Iowa, 564, 48 N. W. 983; MacElree v. Wolfersberger, 59 Kan. 105, 52 Pac. 69; Hellenthal v. Bleuhm, 13 Ohio S. & C. P. Dec. 513.

In MacElree v. Wolfersberger, supra, the court approved an instruction "that if the promise of marriage was to be performed in the future, and no time was specified for the performance of it, and such contract is capable of entire performance within one year from its date, it is not within the statute of frauds. This question does not depend entirely upon the intention or understanding of the parties to the contract, nor upon the fact that the promise was not performed within one year; but if, when the contract was made, it was in reality capable of full performance in good faith within a year, without violating the terms of the contract, or without the intervention of extraordinary circumstances, then it is to be considered as not within the statute of frauds, and a valid and binding contract."

In Wilbur v. Johnson, 58 Mo. 600, the court did not decide whether a contract to marry is within the statute of frauds, if it is not to be performed for more than a year, saying that in this country it has been held that a promise to marry at the end of five years was within that clause of the statute requiring that a promise not to be performed within one year from its mak

So, a contract to marry "in a year," the understanding being that it should be "a year's engagement," is not within the statute of frauds, as an agreement not to be performed within a year. Smith v. Jamieson, 17 Ont. Rep. 626.

And a contract to marry, for the performance of which no definite time is fixed, is not within the provision of the statute of frauds relating to contracts not to be performed within a year, if the contract

ed this conclusion, still the objection in this instance was not good that the promise was void under the statute of frauds because not made in writing, as the evidence clearly showed that the promise, if any was made, was to be performed in less than one year.

As to effect of statute of frauds upon parol contracts for services which may be, but are not intended to be, performed within a year, see note to White v. Fitts, 15 L.R.A. (N.S.) 313. R. E. H.

to marry the plaintiff at any time, if she so desired.

Plaintiff testified that after visiting her a year, and on July 4, 1908, the defendant proposed marriage to her at her home in her daughter's presence, and that she accepted; that there was no stated time for the performance of the marriage; that he set the time in the spring, and then in the fall, and that he made excuses that he did not have time, his children were sick, there was to be an increase in his daughter's family; that he kept calling on her up to January 15, 1913, when, on that evening, he wanted to go and get married right away, and she said that he knew better, that they could not get a marriage license at that time (after 8 o'clock, P. M.); that he never got a license, and never came back; that she did not want to marry him then (time of trial), after she had been humiliated.

Plaintiff's daughter, Clara L. Wilson, corroborated her mother as to the engagement; that she heard him make excuses for not getting married; that she asked him when they were going to be married, and he said that they were going to be married soon, but they were not; that she heard defendant ask her mother to go and get married January 15, 1913, and heard her reply that they could not get a license then; that the place (office) would be closed up; that was after 8 o'clock in the evening, and defendant did not go out to get a license, and that was the last time he was at the house.

On cross-examination Mrs. Corduan testified that on January 15, 1913, she was not ready and willing to marry the defendant, and told him so, and said that he had refused her many times before. She qualified this by saying that it was in an argument with him, and that she never had a chance to marry the man, and afterwards said that she never refused to marry him.

The alleged tender of marriage on January 15, 1913, was not set up by the defendant in his answer, but was elicited at the trial. It may, however, be said to be involved in his statement that he had always been ready and willing and anxious to marry the plaintiff, and offered himself to her, but that she had at all times refused, etc. Anyhow, plaintiff's counsel in his brief does not claim that it could not be made

evidence because not pleaded, contending that the so-called tender was not sufficient to warrant the court in withdrawing from the jury the question whether it was an offer made in strict performance of the engagement, and whether plaintiff rejected it, and, further, that defendant had so long delayed performance that the reasonable

breach having already come about, no subsequent tender, whether on January 15th or after the commencement of the suit, was available.

The evidence on this question, plaintiff's counsel submits, raised a question whether the tender was made in good faith or was merely intended to snare the plaintiff into an answer which defendant could distort into an outright refusal. A tender of performance of a promise of marriage, like that of other promises, must, of course, be made in good faith; and if, in any view of the testimony, the good faith of the tender is questionable, then it is a question of fact for the jury.

The delayed offer by defendant to redeem his promise may be said to be like a disingenuous and studied invitation by a deserting husband to his wife to return to him, which is unavailing to absolve him from the consequences of a situation of his own creation. Arrowsmith v. Arrowsmith,

N. J. Eq. -, 71 Atl. 702, 704. In an action for breach of promise to marry, an unequivocal intention on defendant's part not to perform his contract may be inferred from his conduct. Coil v. Wallace, 24 N. J. L. 291.

Appellant contends that it was improper to withdraw from the jury the consideration of the question whether or not the defendant had tendered himself ready and willing to perform his promise within a reasonable time, no time having been fixed for the marriage. The law appears to be that, where no time of performance of a marriage contract is fixed, action for breach thereof may be brought after a reasonable time. 5 Cyc. 1001.

Such a contract, where no time is fixed, is presumed not to be intended to be performed more than a year after its making, and therefore does not fall within the statute of frauds, requiring a promise not to be performed within a year to be in writing. 5 Cyc. 1000. As the contract in question was one which was possible of performance within a year, the jury would have had a right to infer that the defendant did not intend to perform it, when in fact he had permitted five years to elapse without having done so.

Defendant's offer of marriage after breach is, as a rule, no defense. 5 Cyc. 1004. In Holloway v. Griffith, 32 Iowa, 409, 7 Am. Rep. 208, it was held: "An offer on the part of the defendant to fulfil the marriage contract after a refusal, or a continuance of the offer in open court upon the trial, on condition that plaintiff would dismiss the suit, should not be regarded by the jury

The condition of the renewed offer of marriage in the Holloway Case, "that the plaintiff dismiss the suit," could have no particular effect. If the offer were made without any such condition, the result would be the same; for, if accepted, the suit would at least have to be continued to enable the ceremony to be performed, and, if it were, then, of course, the action would abate; and, if rejected, the defendant would have any advantage that might flow from his having made it.

We hold that an offer on the part of a defendant to fulfil the promise of marriage after his refusal to do so, or a renewed offer in his answer or in open court, is not a defense unless it is made bona fide, and unless, also, the plaintiff has not signified an intention to regard the contract as at an end. These are questions of fact, and are for the jury.

This case should have been submitted to the jury, and that, not only upon the question as to whether the defendant had broken his contract, and had made a belated and feigned offer of performance, but also whether the plaintiff had not herself broken the contract, and whether her rejection of the defendant's offer or offers was made in good faith; for it may be that this long courtship was continued by and with the mutual understanding and consent, implied, if not expressed, of both of these parties, and that what occurred on January 15, 1913, did not operate to put an end to the contract. The facts of the whole matter raised essential jury questions, and they should have been submitted.

It follows that the nonsuit was wrongly granted, and that the judgment should be reversed, and a venire de novo awarded.

given to secure a promissory note for the loan is void on account of the usury.

(April 13, 1915.)

ERTIFICATION by the Court of Appeals to the Supreme Court of questions arising upon appeal by plaintiff from a judgment of the City Court of Monroe for defendants in a suit to recover the amount alleged to be due on certain promissory notes and to enforce a lien upon certain land conveyed to secure their payment. An

swers favorable to defendants returned.

The questions certified to the supreme court were as follows:

"(1) Does the taking or reserving of interest in advance by a bank at the highest legal rate on a short-term loan render the contract usurious within the purview of § 3427 of the Civil Code, so as to make null and void a deed to realty, given to secure the payment of a promissory note representing the amount of such a loan?

"(2) What would be the maximum length of time in which a loan could run and still be a 'short-term loan,' on which interest at the highest legal rate could be tak

en in advance?

MacKenzie v. Flannery, 90 Ga. 591, 16 S. E. 710; Union Sav. Bank & T. Co. v. Dottenheim, 107 Ga. 614, 34 S. E. 217; McCall v. Herring, 116 Ga. 243, 42 S. E. 468; Bank of Newport v. Cook, 60 Ark. 288, 29 L.R.A. 761, 46 Am. St. Rep. 171, 30 S. W. 35; Fleckner v. Bank of United States, 8 Wheat, 338, 5 L. ed. 631; Fowler v. Equitable Trust Co. 141 U. S. 384, 35 L. ed. 786, 12 Sup. Ct. Rep. 1; 39 Cyc. 943; Ervin v. First Nat. Bank, 161 N. C. 42, 76 S. E. 529; Crowell v. Jones, 167 N. C. 386, 83 S. E. 551.

Messrs. R. L. Cox and O. Roberts, for defendants in error:

The deed made by S. N. Forrester to Loganville Banking Company, conveying 275 acres of land to secure a loan of $7,000, is void because tainted with usury, and the

In general.

The earlier cases on this question are discussed in the note to Bank of Newport v. Cook, 29 L.R.A. 761.

As to whether computation of interest on

dealings of the bank with defendants is a scheme to avoid the usury laws of the state of Georgia.

Howell v. Pennington, 118 Ga. 494, 45 S. E. 272; Patton v. Bank of La Fayette, 124 Ga. 965, 5 L.R.A. (N.S.) 592, 53 S. E. 664, 4 Ann. Cas. 639; McCall v. Herring, 116 Ga. 242, 42 S. E. 468; 29 Am. & Eng. Enc. Law, 2d ed. 517; Lockwood v. Muhlberg, 124 Ga. 660, 53 S. E. 92; Archer v. Mcthe basis of thirty days for a month, or 360 days for a year, is usury, see note to Patton v. Bank of La Fayette, 5 L.R.A. (N.S.) 592.

It is held in a majority of the cases that the taking of interest in advance at the highest legal rate is not usurious. Cobe v. Guyer, 237 Ill. 516, 86 N. E. 1071; Bramblett v. Deposit Bank, 122 Ky. 324, 6 L.R.A. (N.S.) 612, 92 S. W. 283; Warren Deposit Bank v. Robinson, 18 Ky. L. Rep. 78, 35 S. W. 275; Sandford v. Lundquist, 80 Neb. 414, 18 L.R.A. (N.S.) 633, 114 N. W. 279, 118 N. W. 129 (by statute); Covington v. Fisher, 22 Okla. 207, 97 Pac. 615 (by statute-not exceeding one year's interest); Newton v. Woodley, 55 S. C. 132, 32 S. E. 531, 33 S. E. 1 (annual interest in advance on a loan for five years); Heyward v. Williams, 63 S. C. 470, 41 S. E. 550; Webb v. Pahde, Tex. Civ. App. 43 S. W. 19 (note for six months).

While no emphasis is placed upon the time which the loan ran in these cases, it does not appear in any of them that the interest was taken in advance on long-time loans.

A taking of interest in advance at the highest legal rate is assumed not to be usurious in Merchants' & P. Bank v. Sarratt, 77 S. C. 141, 122 Am. St. Rep. 562, 57 S. E. 621.

In Willett v. Maxwell, 169 Ill. 540, 48 N. E. 473, a note payable in one year with interest at the rate of 10 per cent after its maturity was given by the borrower, who paid interest for the one year in advance, receiving the difference. The note was allowed to run for many years after maturity, and interest thereon was paid at the rate specified in the note. The contention of the borrower was that the amount borrowed by him must be determined by the amount which he received, and that interest could be charged only on this amount at the highest legal rate; that the effect of the transaction as above given was to reserve interest at a higher rate than the law allowed. This contention was denied, however, the court adhering to the well-settled law in this jurisdiction that it is not usurious to collect and receive as in this case the first year's interest in advance.

Cray, 59 Ga. 546; Pinckard v. Ponder, 6 Ga. 253; Tallman v. Truesdell, 3 Wis. 443; Dixon's Notes.

Evans, P. J. delivered the opinion of the court:

The legal rate of interest in this state is 7 per centum per annum, but the parties may stipulate in writing for a higher rate, not to exceed 8 per centum per annum. ceived by it do not exceed the highest legal rate for the length of time for which the loan was made, the loan is not usurious. Computing by this method it was determined that the total amount received was not as much as would have been received had the highest legal rate been charged, and therefore the loan was decided to be not usurious.

It is stated in syllabus to Lichtenstein v. Lyons, 115 La. 1051, 40 So. 454, that the discount of a note, the proceeds of which are placed at the disposal of the maker from its date, is not added to, but is in lieu of, interest, when the interest runs only from the maturity of the note; and where the rate charged, whether for discount or interest, does not exceed 8 per cent per annum, the contract is not usurious.

There is an obiter statement to same effect in Foster v. Pitman, 2 Neb. (Unof.) 672, 89 N. W. 763.

The statute involved in Fidelity Loan Asso. v. Connolly, 95 N. Y. Supp. 576, authorized discount interest, and nothing is said as to payment in advance at the highest legal rate constituting usury.

Other cases, however, hold the reservation of interest in advance to be usurious. These cases regard the actual sum received as the amount on which interest is to be computed. It is apparent that computing on this sum raises the rate above the legal rate. Hiller v. Ellis, 72 Miss. 701, 41 L.R.A. 707, 18 So. 95.

The reservation of quarterly interest in advance at the highest rate allowed by law is usurious under a statute making it unlawful to reserve, charge, or take for any loan or forbearance of money, as interest or otherwise, any amount "whereby the debtor is required or obligated to pay a greater sum than the actual principal sum received, together with interest at the rate of 10 per centum per annum." Purvis v. Frink, 57 Fla. 519, 49 So. 1023.

Nor is the application of this rule prevented by the device of an agreement to pay interest on the loan from the time application is made for it, when the loan is not consummated until some time afterward. Hiller v. Ellis, supra.