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Blakeley, &c. v. Adams. (Case No. 2.)

can not set up usury against one who pay the debt at his request. Wendlebone v. Parks, 18 Iowa, 546; Polhill v. Brown, 84 Ga., 338, 10 S. E., 921; Pence v. Christman, 15 Ind., 257. In this case, Adams having, so far as appears, no notice of usury in the notes, and they purporting on their face to be valid, he was justified in paying them, and his payments must, under the authorities, be considered as made at the request of Mrs. Blake. ley, and she can not set up usury in the notes against him.

dams did not take an assignment of the notes and sue as the assignee of the original creditors, but it will illustrate the question to see how he would stand if he had sued as assignee of the notes in the first action. Nothing is better settled in Kentucky than that, if Adams had brought the first action as assignee of the notes, he could not, upon the facts siated, be now met with the plea of usury. The court held that the execution of the new note assigned to his ward on arriving at age a note which contained usury. The ward took a new note from the obligor, and when a suit was filed on this note he pleaded lisury. The cour held that the execution of the new note was a payment of the old one, and that the assignee was not contaminated with the usurious contract. This case followed Breckenridge v. Campbell, 3 J. J. Marsh, 12. and it has been followed in a number of cases since. Thus, in Beall v. Rethel, 3 Ky. Law Rep., 397, a note was given for moonshine whisky, and was assigned. The obligor executed a new note to the assignee. It was held that the new note was valid. This was followed in Lucas v. Ramsey, 11 Ky. Law Rep., 902, Burks v. Cheek, 11 Ky. Law Rep., 953, and in other subsequent cases, such as Stephenson v. Shirley (22 R., 1159, 20 R., 767) (60 S. W., 387). One reason given for the rule is that the assignee

Blakeley, &c. V. Adams. (Case No. 2.)

has lost his recourse on the assignor, and, as he has been induced to do this or alter his position for the worse by the act of the obligor in giving him the new note, the latter will not be allowed to set up an infirmity in the note, and thus throw a loss on the assignee which he might not have sustained otherwise. The same principle applies here, for Adams, when he accepted the new note of Mrs. Blakeley, and waited a year upon her promise to pay the debt, according to the agreed judgment, lost all opportunity to reclaim the usury he had paid on the original note, and if the plea of usury is now sustained against him he will suffer a loss without remedy.

None of the cases cited in the opinion are in point; nor has any case in any other State been found sustaininy the conclusion of the court. The cases cited were all against the usurer or person who had received the usury. The case of Shirley v. Stephenson, supra, was again before this court, and, it appearing that the assignee had paid value for the notes, it was held the usury could not be pleaded against her after a renewal of the notes to her. The court is certainly driven to a most anomalous position when it rests its decision on the ground that an innocent surety who has paid the debt of his principal stands in a less favored position than an assignee who has shaved the note or bought it at a discount, and in effect that, if Mrs Blakeley had paid Adams at the maturity of the $3,308.35 note, she might within a year have sued him and recovered the usury in the original notes which he had paid. The consideration of the note for $3,908.35 was not usurious. It represented only the amount Adams had actually paid out, and was supported by the loss of the money to him, the giving of time on

Blakeley, &c. v. Adams. (Case No. 2.)

the debt, and settlement of the former suit. See Mann v. Bank, 104 Ky., 852 (20 R., 1033) (48 S. W., 413).

The usury statute is not essentially different from that against gaming. Kentucky Statutes, section 1956. If this had been a gaming debt, and Adams as surety had paid the note, and had then sued for reimbursement and obtained a judgment for the money he had paid out as surety, and collected the judgment, would anybody suppose that he could be sued and made liable for the amount so collected, although he was in good faith throughout the transaction, and only was his friend's surety as an accommodation without knowing the real consideration of the note? Yet this is in effect the case we have; for it is not alleged that Adam's knew of any infirmity in the notes. On their face they purported to be for a valuable consideration, and when he paid the debts, as he innocent. ly did, the Blakeleys had an adequate remedy against the ienders who had collected the usury, at least after they settled with Adams; and it is their own fault, and not his, if they have sustained any loss. "There is nothing in the record to indicate that there was anything in the transaction of a device to hide the usury, or to protect the usurer in retaining it, and the surety should not suffer.

I therefore dissent from the opinion of the court.
Petition for rehearing by appellee overruled.

Charles Brown Grocery Company v. Wasson, &c.

CASE 54-ACTION BY GROCERY CO. AGAINST WASSOX AND OTHERS ON A

BONT). -MAY ?1.

Charles Brown Grocery Co. v. Wasson, &c.

APPEAL FROM KENTON CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AGAINST WASSON AND DISMISSING PETITION

As ro OTHER DEFENDANTS AND PLAINTIFF APPEALS. AFFIRMED.

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PRINCIPAL AND SURETY-SALES MAN-CONSTRUCTION

VANCES TO PRINCIPAL- LIABILITY OF SURETIES.

Held: A surety is not bound beyond the terms of his contract strictly

construed, and therefore where a salesman, who was to receive as compensation for his services a certain per cent. of the proiits on sales made by him, executed to his employer a bond, with: sureties, whereby the obligors undertook that the principal shouli “well and faithfully discharge his duties as salesman and co!lector," and should “also account for all moneys and properties and other things which may come into his possession or under his control in such capacity,” the sureties are not bound for money advanced to the principal from menth to month on the expectation that his compensation under the contract would equal the amount he received, as the money was not received by him in the capacity of salesman or collector.

CHAS. H. FISH, ATTORNEY FOR APPELLANT.

H D. GREGORY, ATTORNEY FOR APPELLEES.

(No briefs in the record.)

OPINION OF THE COURT BY JUDGE HOBSON-AFFIRMING.

Appellant, the Charles Brown Grocery Company, emploved C. E. Wasson as salesman. By the contract between them he was to receive for his services compensation at the rate of 40 per cent. of the gross profits on the sales made by him. For a part of the time the company guaranteed to him that this should not be less than $8.5 per month and expenses, but later the guaranty was withdrawn. The company furnished him money from

Charles Brown Grocery Company v. Wasson, &c.

time to time, as he called for it, to cover his expenses and salary, and at the end of his term of service he had fallen in debt to it in the sum of $572.77: He executed to it a bond, with appellees as sureties, for the faithful performance of his duties, and this suit was brought by the company on the band against him and his sureties to recover the balance owing by him. On final hearing the fourt gave judgment against him for the amount claimed, but dismissed the action as to his sureties, and from this judgment the plaintiff appeals. The only question in the case that need be determined is whether the bond which the sureties signed covers the liability sued for. By it the obligors acknowledged themselves bound to the company in the sum of $2,000, and then concludes with tbese words: "The condition of the above obligation is such that whereas, the said Charles Brown Grocery Company aforesaid have employed the said Charles E. Wasson to sell goods and collect for same. Now, if the said Charles E. Wasson shall well and faithfully discharge his duties as salesman and collector, and shall also account for all moneys and properties and other things which may come into his possession or under his control in such capacity, then the above obligation is to be void; otherwise to remain in full force and virtue." It is not averred or shown that Wasson failed to discharge his duties as salesman or collector or that he did not account for moneys, property or other things which came into his possession or under his control in that capacity unless the money advanced to him by the company as above explained comes within the words quoted. He accounted for all the goods that were delivered to him to sell, and also for all the money that he collected. The money that was not accounted for was advanced to him by the com

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