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Wiswell, 16 Neb. 625, 21 N. W. 391; Fisk 5 Cyc. 1001; Lawson, Rights, Rem. & Pr. v. Holden, 17 Tex. 408.
§ 697; Spencer, Dom. Rel. § 19; Bishop, Nor was the trial court justified in re- Marr. Div. & Sep. § 188; Coil v. Wallace, fusing to permit the jury to determine 24 N. J. L. 291; Lawrence v. Cooke, 56 Me. whether, upon the evidence, the plaintiff 187, 96 Am. Dec. 443; Paris v. Strong, 51 really rejected this “tender of marriage" | Ind. 339; Clark v. Pendleton, 20 Conn. 495; of January 15, 1913.
McConahey V. Griffey, 82 Iowa, 564, 48 Shotwell v. Dennman, 1 N. J. L. 174; N. W. 983; Clements v. Moore, 11 Ala. Kaufman v. Bush, 69 N. J. L. 645, 56 Atl. 35; Wagenseller v. Simmers, 97 Pa. 465; 291, 15 Am. Neg. Rep. 137; Hayward v. Clement v. Skinner, 72 Vt. 159, 47 Atl. 788; North Jersey Street R. Co. 74 N. J. L. 678, Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 8 L.R.A. (N.S.) 1062, 65 Atl. 737.
275. Reasonable inference could be drawn Defendant's tender of marriage after the from the evidence that plaintiff's cause of commencement of this action is no defense. action set up in her complaint was com- Smith v. Compton, 67 N. J. L. 548, 58 plete, because a reasonable time for per- L.R.A. 480, 52 Atl. 386; Holloway formance had already elapsed, before Janu- Griffith, 32 Iowa, 409, 7 Am. Rep. 208; ary 15, 1913.
Connolly v. Bollinger, 67 W. Va. 30, 67 S. more than a year after its making, was, words, and that it was evident that if the within the statute of frauds, held that such above cases were well decided, they had no a contract, if within the statute, would not application to this case. be taken out of the statute by an oral ac- In Brick v. Gannar, supra, the court said knowledgment made within one year from that contracts of marriage were not actionthe time the contract was to be performed. able at law before the English statute of
In Paris v. Strong, 51 Ind. 339, the court frauds was passed, but were subjects of prosaid: "We do not doubt but that a con- ceedings in the ecclesiastical courts to comtract of marriage, not to be performed pel specific performance, and that such conwithin a year, is within the statute, as well tracts therefore were not within the mis
contract on any other subject. But chiefs which ca sed the passage of the statthe evidence does not clearly show that the ute; that although actions at law have long contract might not have been performed been maintainable in England on such conwithin the year. It was to be performed tracts, no defense based upon the statute either in or within three years. If it might of frauds has ever been interposed in that be performed at any time within the three country as far as the reported cases disclose. years, and consequently within one year, Brick v. Gannar, supra, was approved in it would not be within the statute."
Nearing v. Van Fleet, 151 N. Y. 643, 45 N. It seems to be assumed in Daggett v. Wal- E. 1133. lace, 75 Tex. 352, 16 Am. St. Rep. 908, 13 So, assuming that the contract of marS. W. 49, that a contract to marry, if not riage in question was not to be performed to be performed within one year, is within until after the expiration of three years, the statute of frauds.
the court in Lewis v. Tapman, 90 Md. 294, On the other hand, in Brick v. Gannar, 47 L.R.A. 385, 45 Atl. 459, held that a con36 Hun, 52, it was held that a contract to tract to marry was not of such a nature marry, to be performed more than one year as to come within the provision of the statfrom the time it was made, was not within ute of frauds requiring agreements not to the statute of frauds in New York. The be performed within a year to be in writcourt called attention to the title of the ing. The English statute of frauds was statute, which reads, "Of fraudulent con- in force in Maryland, by virtue of proviveyances and contracts relative to goods, sions of the Declaration of Rights. As chattels, and things in action;" and held grounds for the decision, the court stated that its provisions referred only to the that at the time the English statute of contracts embraced within the title. The frauds was adopted, no action was maindecision in Ullman v. Meyer, supra, was tainable in the common-law courts on an disapproved, it being said that the court agreement to marry, and that the contract in that case overlooked the title of the stat. to marry is so essentially different from ute, and the cases of Derby v. Phelps, and every other contract known to the law, Nichols v. Weaver, supra, and Lawrence v. that it could not be assumed that Par. Cooke, 56 Me. 187, 96 Am. Dec. 443, were liament by the use of the words "any distinguished, on the ground that the titles agreement," in that provision of the of the statutes of frauds in those states were statute of frauds requiring any agreement different, the title to the statute in New that is not to be performed within a year Hampshire being “Actions," in Kansas to be in writing, intended to include a con"Frauds and Perjuries,” and in Maine, tract to marry. "Prevention of Frauds and Perjuries in Con- There was evidence, however, in Lewis v. tracts and Actions Founded Thereon." The Tapman, supra, that the contract to marry court said that it was the settled law of was to be performed "within three years," New York that the title may be resorted to and it was held that even if a contract to to aid in discovering the design of the legis- marry was within the statute of frauds, lature and to limit the meaning of generall the contract in this case was not within the
E. 71, 20 Ann. Cas. 1350; 5 Cyc. 1004; , alleged that the promise was made on July Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 4, 1908, which was renewed subsequently; 275; Liefmann v. Soloman, 7 Abb. Pr. 409, that plaintiff relied upon these promises, note; Southard v. Rexford, 6 Cow. 254. remained and continued sole and unmarried, Mr. Frank Koch, for appellee:
and had been and still was ready and willPlaintiff should have been nonsuited on ing to marry the defendant. Breach althe opening, or when the defendant tendered leged, and damages in the sum of $50,000 himself ready to perform his contract. demanded.
In order to permit a recovery it must Defendant in his answer admitted the appear by the conduct of the defendant, or promise and its repeated renewals, but deby his declared intention, that he had made nied that the plaintiff had been at all times, a breach of the contract.
and was still, ready and willing to marry Coil v. Wallace, 24 N. J. L. 291.
him, and said, although he, ever since the
promise, had been ready, willing, and anix. Walker, C., delivered the opinion of the ious to marry the plaintiff, and asked her to court:
fix the date for the marriage, that the plainThis was an action at law for a breach tiff at all times refused to fix a date, or to of promise of marriage. The complaint'marry him at any date fixed by him, and he statute, as there was a possibility of its bey may possibly be performed within a year, ing performed within a year.
and it does not appear that it was agreed In Clark v. Pendleton, 20 Conn. 495, it that it should not be performed within that was held that a contract to marry when the time. CORDUAN v. McCLOUD; Blackburn v. defendant returned from a whaling voyage, Mann, 85 Il. 222; McConahey v. Griffey, on which he expected to be absent for about 82 lowa, 564, 48 N. W. 983; MacElree v. eighteen months, was not within the stat. Wolfersberger, 59 Kan. 105, 52 Pac. 69; ute of frauds requiring an agreement not Hellenthal v. Bleuhm, 13 Ohio S. & C. P. to be performed within one year to be in Dec. 513. writing, as it did not appear that the voyage In MacElree v. Wolfersberger, supra, the would necessarily occupy more than a year. court approved an instruction "that if the This conclusion was reached although the promise of marriage was to be performed in voyage did in fact take more than a year. the future, and no time was specified for
And in Huggins v. Carey, Tex. Civ. the performance of it, and such contract is App. 149 S. W. 390, it was held that a capable of entire performance within one complaint alleging a contract to marry as year from its date, it is not within the statsoon as the defendant could have a suitable ute of frauds. This question does not dehome erected and so wind up his business pend entirely upon the intention or underaffairs that he could quit work and take a standing of the parties to the contract, nor wedding trip did not state a contract void upon the fact that the promise was not perwithin the statute of frauds as not to be formed within one year; but if, when the performed within a year.
contract was made, it was in reality capaSo, in Clark v. Reese, 26 Tex. Civ. App. ble of full performance in good faith within 619, 64 S. W. 783, it was held that the stat- a year, without violating the terms of the ute of frauds did not apply to a contract to contract, or without the intervention of marry when the defendant had built an ad- extraordinary circumstances, then it is dition to his place of business, or when the to be considered as not within the statute plaintiff had given up her business and of frauds, and a valid and binding conmoved into a house owned by the defendant, tract.” since, so far as appeared, the contract In Wilbur v. Johnson, 58 Mo. 600, the might have been performed within a year.
court did not decide whether a contract to A promise to marry within four years is marry is within the statute of frauds, if not within the statute of frauds. Lawrence it is not to be performed for more than a v. Cooke, supra.
The court said: "It is year, saying that in this country it has been obvious that this promise might have been held that a promise to marry at the end performed within a year; and it does not of five years was within that clause of the appear that the parties understood that it statute requiring that a promise not to be was not to be performed within that time. performed within one year from its makIt is well settled that such a promise needing shall be in writing, and that if it adoptnot be in writing.”
ed this conclusion, still the objection in So, a contract to marry "in a year,” the this instance was not good that the promise understanding being that it should be "a was void under the statute of frauds beyear's engagement," is not within the stat- cause not made in writing, as the evidence ute of frauds, as an agreement not to be per- clearly showed that the promise, if any was formed within a year. Smith v. Jamieson, made, was to be performed in less than one 17 Ont. Rep. 626.
year. And a contract to marry, for the per.
As to effect of statute of frauds upon formance of which no definite time is fixed, parol contracts for services which may be, is not within the provision of the statute but are not intended to be, performed within of frauds relating to contracts not to be a year, see note to White v. Fitts, 15 L.R.A. performed within a year, if the contract. (Ň.S.) 313.
R. E. H.
tendered himself ready, willing and anxious | time allowed by law had expired, and, the to marry the plaintiff at any time, if she breach having already come about, no subso desired.
sequent tender, whether on January 15th Plaintiff testified that after visiting her or after the commencement of the suit, was a year, and on July 4, 1908, the defendant available. proposed marriage to her at her home in The evidence on this question, plaintiff's her daughter's presence, and that she ac- counsel submits, raised a question whether cepted; that there was no stated time for the tender was made in good faith or was the performance of the marriage; that he merely intended to snare the plaintiff into set the time in the spring, and then in the an answer which defendant could distort fall, and that he made excuses that he into an outright refusal. A tender of perdid not have time, his children were sick, formance of a promise of marriage, like there was to be an increase in his daughter's that of other promises, must, of course, be family; that he kept calling on her up to made in good faith; and if, in any view January 15, 1913, when, on that evening, of the testimony, the good faith of the tenhe wanted to go and get married right der is questionable, then it is a question of away, and she said that he knew better, fact for the jury. that they could not get a marriage license The delayed offer by defendant to redeem at that time (after 8 o'clock, P. M.); that his promise may be said to be like a dishe never got a license, and never came back; ingenuous and studied invitation by a dethat she did not want to marry him then serting husband to his wife to return to (time of trial), after she had been humili. him, which is unavailing to absolve him ated.
from the consequences of a situation of his Plaintiff's daughter, Clara L. Wilson, cor- own creation. Arrowsmith v. Arrowsmith, roborated her mother as to the engagement; - N. J. Eq. —, 71 Atl. 702, 704. In an acthat she heard him make excuses for not tion for breach of promise to marry, an ungetting married; that she asked him when equivocal intention on defendant's part not they were going to be married, and he said to perform his contract may be inferred that they were going to be married soon, from his conduct. Coil v. Wallace, 24 N. J. but they were not; that she heard defendant L. 291. ask her mother to go and get married Janu- Appellant contends that it was improper ary 15, 1913, and heard her reply that they to withdraw from the jury the consideration could not get a license then; that the place of the question whether or not the defend(office) would be closed up; that was after ant had tendered himself ready and willing 8 o'clock in the evening, and defendant did to perform his promise within a reasonable not go out to get a license, and that was time, no time having been fixed for the the last time he was at the house.
marriage. The law appears to be that, On cross-examination Mrs. Corduan testi- | where no time of performance of a marfied that on January 15, 1913, she was not riage contract is fixed, action for breach ready and willing to marry the defendant, thereof may be brought after a reasonable and told him so, and said that he had refused time. 5 Cyc, 1001, her many times before.
She qualified this Such a contract, where no time is fixed, is by saying that it was in an argument with presumed not to be intended to be perhim, and that she never had a chance to formed more than a year after its making, marry the man, and afterwards said that and therefore does not fall within the stat. she never refused to marry him.
ute of frauds, requiring a promise not to be The alleged tender of marriage on Janu- performed within a year to be in writing. ary 15, 1913, was not set up by the defend- 5 Cyc. 1000. As the contract in question ant in his answer, but was elicited at the was one which was possible of performance trial. It may, however, be said to be in within a year, the jury would have had a volved in his statement that he had always right to infer that the defendant did not been ready and willing and anxious to intend to perform it, when in fact he had marry the plaintiff, and offered himself to permitted five years to elapse without havher, but that she had at all times refused,
ing done so. etc. Anyhow, plaintiff's counsel in his brief does not claim that it could not be made is, as a rule, no defense. 5 Cyc. 1004. In
Defendant's offer of marriage after breach evidence because not pleaded, contending that the so-called tender was not sufficient Holloway v. Griffith, 32 Iowa, 409, 7 Am. to warrant the court in withdrawing from Rep. 208, it was held: “An offer on the part the jury the question whether it was an
of the defendant to fulfil the marriage conoffer made in strict performance of the en- tract after a refusal, or a continuance of gagement, and whether plaintiff rejected it, the offer in open court upon the trial, on and, further, that defendant had so long condition that plaintiff would dismiss the delayed performance that the reasonable 'suit, should not be regarded by the jury
either as a defense or in mitigation of dam- | term loan, is usurious; and a deed to land ages.”
given to secure a promissory note for the The condition of the renewed offer of mar
loan is void on account of the usury. riage in the Holloway Case, “that the plaintiff dismiss the suit,” could have no par
(April 13, 1915.) ticular effect. If the offer were made with
ERTIFICATION by the Court of Apout any such condition, the result would be
peals to the Supreme Court of questions the same; for, if accepted, the suit would arising upon appeal by plaintiff from a at least have to be continued to enable the judgment of the City Court of Monroe for ceremony to be performed, and, if it were, defendants in a suit to recover the amount then, of course, the action would abate; alleged to be due on certain promissory and, if rejected, the defendant would have notes and to enforce a lien upon certain any advantage that might flow from his land conveyed to secure their payment. Anhaving made it.
swers favorable to defendants returned. We hold that an offer on the part of a The questions certified to the supreme defendant to fulfil the promise of marriage court were as follows: after his refusal to do so, or a renewed offer
“(1) Does the taking or reserving of inin his answer or in open court, is not a de- terest in advance by a bank at the highest fense unless it is made bona fide, and un- legal rate on a short-term loan render the less, also, the plaintiff has not signified an contract usurious within the purview of intention to regard the contract as at an
§ 3427 of the Civil Code, so as to make null end. These are questions of fact, and are and void a deed to realty, given to secure for the jury.
the payment of a promissory note representThis case should have been submitted to ing the amount of such a loan? the jury, and that, not only upon the ques- “(2) What would be the maximum tion as to whether the defendant had broken length of time in which loan could run his contract, and had made a belated and and still be a 'short-term loan,' on which infeigned offer of performance, but also wheth- terest at the highest legal rate could be taker the plaintiff had not herself broken the en in advance ? contract, and whether her rejection of the
“(3) Is the taking of interest in advance defendant's offer or offers was made in good at the highest legal rate for a period of faith; for it may be that this long court. nine months and eleven days usurious, or ship was continued by and with the mutual is such a loan relieved of the taint of usury understanding and consent, implied, if not because of being a short-term loan ?!” expressed, of both of these parties, and that
Mr. J. H. Felker, for plaintiff in error: what occurred on January 15, 1913, did not
If the notes sued on are to partake of the operate to put an end to the contract. The 8 per cent paid in advance on the canceled facts of the whole matter raised essential notes, this lawful rate reserved in advance jury questions, and they should have been does not render the new transaction usursubmitted.
ious. It follows that the nonsuit was wrongly
MacKenzie v. Flannery, 90 Ga. 591, 16 granted, and that the judgment should be S. E. 710; Union Sav. Bank & T. Co. v. Dotreversed, and a venire de novo awarded.
tenheim, 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. GEORGIA SUPREME COURT.
761, 46 Am. St. Rep. 171, 30 S. W. 35;
Fleckner v. Bank of United States, 8 Wheat, LOGANVILLE BANKING COMPANY 338, 5 L. ed. 631; Fowler v. Equitable
Trust Co. 141 U, S. 384, 35 L. ed. 786, 12 S. N. FORRESTER et al.
Sup. Ct. Rep. 1; 39 Cyc. 943; Ervin v. First
Nat. Bank, 161 N. C. 42, 76 S. E. 529; Cro(- Ga. 84 S. E. 961.)
well v. Jones, 167 N. C. 386, 83 S. E. 551.
Messrs. R. L. Cox and O. Roberts, for Usury – reserving interest in advance. defendants in error: The reserving of interest in advance by
The deed made by S. N. Forrester to Loa bank at the highest legal rate of interest on a loan, whether it be a short or long ganville Banking Company, conveying 275
acres of land to secure a loan of $7,000, is Headnote by Evans, P. J.
void because tainted with usury, and the Note. Lawfulness of taking interest in
In general. advance.
The earlier cases on this question are disI. In general, 1195.
cussed in the note to Bank of Newport v. II. In periodical payments, 1197.
Cook, 29 L.R.A. 761. III. For what length of time allowed, 1197. As to whether computation of interest on
dealings of the bank with defendants is a , Cray, 59 Ga. 546; Pinckard v. Ponder, 6 scheme to avoid the usury laws of the state Ga. 253; Tallman v. Truesdell, 3 Wis. 443; of Georgia.
Dixon's Notes. Howell v. Pennington, 118 Ga. 494, 45 S. E. 272; Patton v. Bank of La Fayette, 124 Evans, P. J. delivered the opinion of Ga. 965, 5 L.R.A. (N.S.) 592, 53 S. E. 664, the court: 4 Ann. Cas. 639; McCall v. Herring, 116 The legal rate of interest in this state Ga. 242, 42 S. E. 468; 29 Am. & Eng. Enc. is 7 per centum per annum, but the parLaw, 2d ed. 517; Lockwood v. Muhlberg, ties may stipulate in writing for a higher 124 Ga. 660, 53 S. E. 92; Archer v. Mc- rate, not to exceed 8 per centum per annum. the basis of thirty days for a month, or ceived by it do not exceed the highest legal 360 days for a year, is usury, see note to rate for the length of time for which the Patton v. Bank of La Fayette, 5 L.R.A. loan was made, the loan is not usurious. (N.S.) 592.
Computing by this method it was deterIt is held in a majority of the cases that mined that the total amount received was the taking of interest in advance at the not as much as would have been received highest legal rate is not usurious. Cobe v. had the highest legal rate been charged, and Guyer, 237 ni. 516, 86 N. E. 1071; Bram- therefore the loan was decided to be not blett v. Deposit Bank, 122 Ky. 324, 6 L.R.A. usurious. (N.S.) 612, 92 S. W. 283; Warren Deposit It is stated in syllabus to Lichtenstein v. Bank v. Robinson, 18 Ky. L. Rep. 78, 35 Lyons, 115 La. 1051, 40 So. 454, that the S. W. 275; Sandford v. Lundquist, 80 Neb. discount of a note, the proceeds of which 414, 18 L.R.A. (N.S.) 633, 114 N. W. 279, are placed at the disposal of the maker from 118 N. W. 129 (by statute); Covington v. its date, is not added to, but is in lieu of, Fisher, 22 Okla. 207, 97 Pac. 615 (by stat interest, when the interest runs only from ute--not exceeding one year's inter-st); the maturity of the note; and where the Newton v. Woodley, 55 S. c. 132, 32 S. E. rate charged, whether for discount or in531, 33 S. E. 1 (annual interest in advance terest, does not exceed 8 per cent per anon a loan for five years); Heyward v. Wil- num, the contract is not usurious. liams, 63 S. C. 470, 41 S. E. 550; Webb v. There is an obiter statement to same efPahde, Tex. Civ. App. 43 S. W. 19 fect in Foster v. Pitman, 2 Neb. (Unof.) (note for six months).
672, 89 N. W. 763. While no emphasis is placed upon the The statute involved in Fidelity Loan time which the loan ran in these cases, it Asso. y. Connolly, 95 N. Y. Supp. 576, audoes not appear in any of them that the thorized discount interest, and nothing is interest was taken in advance on long-time said as to payment in advance at the highloans.
est legal rate constituting usury. A taking of interest in advance at the Other cases, however, hold the reservation highest legal rate is assumed not to be usu- of interest in advance to be usurious. These rious in Merchants' & P. Bank v. Sarratt, cases regard the actual sum received as the 77 S. C. 141, 122 Am. St. Rep. 562, 57 amount on which interest is to be computed. S. E. 621.
It is apparent that computing on this sum In Willett v. Maxwell, 169 Ill. 540, 48 raises the rate above the legal rate. Hiller N. E. 473, a note payable in one year with v. Ellis, 72 Miss. 701, 41 L.R.A. 707, 18 interest at the rate of 10 per cent after its So. 95. maturity was given by the borrower, who The reservation of quarterly interest in paid interest for the one year in advance, advance at the highest rate allowed by law receiving the difference. The note was al- is usurious under a statute making it unlowed to run for many years after maturity, lawful to reserve, charge, or take for any and interest thereon was paid at the rate loan or forbearance of money, as interest specified in the note. The contention of the or otherwise, any amount “whereby the borrower was that the amount borrowed by debtor is required or obligated to pay a him must be determined by the amount greater sum than the actual principal sum which he received, and that interest could received, together with interest at the rate be charged only on this amount at the high-of 10 per centum per annum." Purvis v. est legal rate; that the effect of the trans- Frink, 57 Fla. 519, 49 So. 1023. action as above given was to reserve interest Nor is the application of this rule preat a higher rate than the law allowed. This vented by the device of an agreement to contention was denied, however, the court pay interest on the loan from the time apadhering to the well-settled law in this plication is made for it, when the loan is jurisdiction that it is not usurious to col- not consummated until some time afterlect and receive as in this case the first ward. Hiller v. Ellis, supra. year's interest in advance.
In order that a transaction be usurious, In National L. Ins. Co. v. Donovan, 238 there must be an intent to violate the law. III. 283, 87 N. E. 356, interest at 1 per This corrupt intent is not established by cent less than the highest legal rate ailow the mere fact that a part of the interest able was charged on the note, and in addi. agreed upon was advanced by the borrower, tion the lender received a commission. The in the absence of all other evidence of a court states that if the total amount of usurious intent. Swanson v. Realization & interest charged and the commissions re- D. Corp. 70 Minn. 380, 73 N. W, 165.