52 SUPREME , COURT OF ARKANSAS; [35 Ark White et al. vs. Friedlander et al. NVEiTiet aL tt:ThiTEDLANDEE et al. 1. USURY: Including innote for aCcount, interest not'due. An Arkang as not' e etecuted ai the Maturity of a bill for goods, for the aggregate ,, amount :nf the bill . and ,,. interest on it .at ten per cent. per annum frOm the date of purahase instead of from its maturity, is void for usury.
35 Ark T NOVEMBER TERM,1879. 53 White et al. vs. Friedlander et el. 2. LEx Loci: By what law contracts governed:" Laws of other states mu.st be proved. A note made in Arkansas, and payable in TennesSee, will be goirerned by the laws of Tennessee; and in the absence of proof of the law of Tennessee, such note, though usurious if governed by the laws of Arkansas, will be enforced in her courts. APPEAL from LeC Circuit Court. • Hon. 3 - . N. CYPERT, Circuit judge. Bose, for appellant Brown, contra. EAKIN, j. Appellants, merchants at Memphis, sued ap-pellees, Friedlander & Ga., a firm doing business at Mari-anna, Lee county, Arkansas, in the court of COMMoll pleas cc( that county, upon two notes, dated, both, , on the thirty-first day of May, 1877, and payable to appellants, or their order, in Memphis, Tennessee. One was for $50, payable Oo-tOber 'first, after date; the other" for $293.62, payable , Novem-ber first, after date. No intereat was expressed on the face of either. Defendants pleaded usury, stating- that on said thirty-first of May, 18-77-; they owed appellants., on account, for invoices:of goods sold, $509.92, , of : which they , paid, in cash, $50, leaving $459.92. That, .to -satisfy , said balance, th4 gave plaintiffs, upon agreement, five notes, four of which, for $50 each, were Made payable, , respectively; on the first days of' july, Aughst, September and October; and the " fifth, for $293.92, was made payable on the first of November, all nekt after date.- Upon the last note there was a credit ' of cash, $75, on the eighteenth of DeCember, 1877.. • , , .The court of common- pleas; on trial,, rendered judgment in favor of plaintiffs for $272.68, after ' having deducted
51 SUPREME COURT OF ARKANSAS, [35 Ark. White- et al. vs. Friedlander et al. $4.15 'on aeconnt Of 'an error in the calculation of interest. Defendants appealed to the circuit court, where the - matter was again heard by the court sitting as a jury. It appeared in proOf, 'that on the twentieth day Of February, 1877, defendants bought of plaintiffs a bill of goods, invoiced to the amount of $475.57, ,to be paid for in si#y days. On 'the sixth of March, 1877, they bought, on . the same terms, another bill of $34.35. The bills remained unpaid until the last-day of May, when defendants paid $50 cash, and gave the notes in question for the balance. The plaintiffs offered to remit 'a small excess, arising from a mistake in caleulation; :which ,the court held competent, so far as it was only an error in calculation; h , ut as • did not . cure the usury,' and inasmuch as- the interest lia.d been calculated on the invoice-from the date of the•sales, the court: gave judgment against the appellants with costs. motion for a neW `trial was overruled, and bill of exceptions taken. , • , „ L Usury: . All the notes were executed together, and Including In note for must be all considered together in estimating account In-a terest not the nature of the agreement in accordance with due. . . which they were executed. , Without , descending to minutiae, it is evident that the intention of the parties Was to, charge, in the notes, interest at the rate of ten per cent'. per annum, .from the time of the invoices of goods furnished, instead of intereskfrom the . expiration a sixty days. - The' purchasers had sixty days, under the agreement, from the date of each, invoice, to pay it. Only that amount, and no more, was demandable.by the . vendors' at- the end of the time. ' It. ig to be presumed that the parties, on both sides, bargained on this basis; and that the vendors had recompensed themselves for the delay in the prices charged, and the ,) purchaser had agreed to give that mucl,i in consid:
36-.Arkl]; NOVEMBER" TERM; 1879. A , 551 WEite'eti alZva: -Friedlander eVid. , eration of the:delaY.; There was nu , moral:ANigation, nor any reason, save in the nature of a penalty, .why the purchaser, on, the , failure . of payment at tLe end of SiktY days; ShOnld 'pay interest at ' the rate of ten per cent. joer annuin from the da.te of the purchase. Such an express agreement might be permissible, but in the absence of proof of it tLe vendor would not have the right to exaet such terins. The agreement, carried into effect by the execution of the t !')' T ay fen-per Cent: interest, by relation, from the , tiMe of the purchase—making all together a.larger amount than would have resulted from taking the sum actnally, agreed .to be paid, and- the subsequent interest at ten per cent. from the time it was : due, Would have been void,' as usurious, if the transaction had been governed by :the laws of ArkaTiais. •' But the-noteS : were made payable in Tennes-2. Lex ioci: I By: wtiat see. There is no proof of what her laws were 'igw. contracts are in this regard. If such contracts are void there, g v o erne d . policy and comity forbid' that we sho l u e ld n d :u hr t * tsetates the aid of our tribunals to enforce them. That , however, should be shown affirmatively, otherwise we cannot presume that laws of ia penal nature, involving' forfeitures, are the same in other states with , . our own.. Independently of statutes, there is no principlOf' Common law defining usury, or punishing it by forfeitures„ There was noth-in'gic.i'ebf ô sho'w theSe netes illegal; by –the . laws. r a, the place -vAere.theY were'to be paid. . - The eirenit judge erred in refiiing a new trial. Reverse the judgment, and remand the case for a new 'trial, as Moved . s ..: -- : e. I : .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.