#### *Bull v. Douglas, Administrator of Turnbull.

Argued Monday, March 21st, 1814.

1. Contract — Sale of United States Stock — Usury.*— A contract for the sale of 6000 dollars United States 8 per cent, stock, to be delivered and regularly transferred on a future day, for 6000 dollars current money in hand paid, is not usurious.

2. Same — Same—Breach of Contract — Measure of Compensation. — Tn such case, if the certificate of stock be not delivered and transferred according to contract, the proper measure of compensation is not the nominal amount of the stock, with 8 per cent, interest from the day when it should have • been delivered, but its true value on that day, (including the interest then due,) with lawful interest on such value until payment.

See Groves v. Graves, 1 Wash. 1, and Winslow v. Dawson, ibid. 119; also Reynolds v. Waller, Id. 165; and 2 H. and M. 169.

Adam Douglas, administrator of Robert Turnbull, filed his bill in the Superior Court of Chancery for the Staunton district, against Ezekiel W. Bull, to obtain a decree foreclosing a mortgage. The deed in question was executed by the defendant to Robert Turnbull, April 21st, 1801, conveying in absolute fee simple, a certain tract of land. It was acknowledged in court on the same day, and ordered to be recorded. An endorsement was made upon it, dated the 25th of April 1801, to this effect; that the within Ezekiel W. Bull, having contracted on the 29th day of May 1800, with Robert Turnbull for the sale of six thousand dollars of the United States 8 per cent, stock, at the price of six thousand current dollars, and having failed to deliver the same, on the first day of December 1800, according to his agreement with the said Robert, but being still willing to deliver it on the first day of January next ensuing the date of the said writing, with the interest due thereon from the 1st day of January 1801; if, therefore, he, the said Bull, should deliver the said stock, with the interest aforesaid, on the day last appointed, and so transfer it as to enable the said Turnbull regularly to draw his 8 per cent, interest upon it, then the deed was to be void. This endorsement was signed by Turnbull, and acknowledged by him in court, and ordered to be recorded, on the 29th of April. The deed was executed in presence of a subscribing witness ; the endorsement was not attested.

The complainant in his bill stated, that this deed was intended as a mortgage, to secure the performance of the aforesaid contract ; that the endorsement was made at the time of executing the deed ; and that the defendant failed to deliver the stock.

The answer did not, in explicit terms, *132either admit or deny the statements in the bill, but set out a different contract; alleging that Turnbull lent the defendant 5750 dollars, to be repaid in certificates of United States 8 per cent, stock at a *future day ; that 8 per cent, was calculated on the said sum of 5750 dollars to the day of re-payment, making the sum of six thousand dollars in the whole ; that this contract was entered into by the defendant, under the influence of certain suggestions of Turnbull, which afterwards proved to be unfounded ; that the defendant remonstrated with Turnbull, and he.agreed to give further indulgence, and receive back the money borrowed with a more moderate premium for its use ; and, finally, that a negociation had, with his consent, taken place, whereby the defendant had paid a considerable part of the money borrowed.

No depositions were offered on either side. The only exhibits were the deed and endorsement, which were made a part of the bill.

On the 30th of March, 1805, Chancellor Brown pronounced his opinion, “that the case stated in the defendant’s answer not being responsive to the bill, nor supported by any testimony, and the defendant not having denied the statement of the contract, as set forth in the endorsement upon the deed, and which the plaintiff has made a part of his case, (though the defendant has not estopped from denying it,) and it appearing, from the answer itself, that something more than a loan was intended it was therefore adjudged, ordered and decreed, “that unless the defendant should, by the 1st of August ensuing, transfer to the plaintiff six thousand dollars of United States 8 per cent, stock, or that sum in current dollars, (which the plaintiff agreed to accept in lieu thereof,) together with eight per cent, thereon, from the 1st of January 1801, (the tirae when the stock was to have been delivered,) .to the 29th day of May, 1805 ; amounting to 2518 dollars ; also 6 per cent, on 6000 dollars, from the date of the decree till payment, then the equity of redemption should be foreclosed, and the land sold.

The stock and money were not paid, and the land was sold for six thousand dollars.

In July 1807, upon the return of the commissioners’ report, the Chancellor made his final decree, crediting the defendant by the proceeds of the sale, after deducting commissions *aud other expenses, and directing him to pay the balance to the plaintiff, with continuing interest: from which decree the defendant appealed.

Chapman Johnson for appellant, assigned the following errors in the decree.

1. The contract which the deed was given to secure was usurious on its face. By that contract, 6000 dollars bearing 8 per cent, interest were to be given for the consideration of six thousand current dollars. This is not like the case of a purchase of ordinary stock, which may, or may not produce more than 6 per cent, interest. The interest of this stock is fixed, and could not yield less than 8 per cent. Indeed, by the terms of the agreement, the stock is to be so transferred as that Turnbull shall be able to draw 8 per cent, upon it.

But the contract cannot be considered as set forth in that endorsement. The appellant was no party to that writing. It was made by Turnbull himself after the execution and recording of the deed, and not at the time of executing the deed, as alleged in the bill. It is true, the answer does not explicitly deny this statement; but, then, the endorsement must be taken as part of the bill: the bill must be taken altogether ; and the endorsement itself shews that that statement of the bill is not correct. The endorsement, therefore, is to be considered as no part of the deed, and furnishing no evidence against the appellant. The contract, then, must be collected from the bill and answer. The bill sets it forth as in the endorsement; and the defendant is called upon to answer this bill. The answer sets forth a contract very different, and one that would be clearly usurious ; a contract of loan, to be repaid in 8 per cent, stock, with 8 per cent, interest added thereon till the time of re-payment! If the repayment of a loan in 8 per cent, stock be not of itself usury, the addition of the 8 per cent, till the time of re-payment certainly is.

2. If the contract be not usurious, yet the decree is wrong in principle. Instead of decreeing six thousand dollars, with 8 per cent, interest, (which is an usurious decree,) the value *of the 8 per cent. stock should have been estimated at the time when it became due, and that sum, with interest, given ; or more properly, there should have been an issue to assess damages for breach of the contract, in which the jury would have found, in damages, the value of the stock and interest.

3. The decree is wrong in fixing the periods of interest. It decrees 8 per cent, interest till the 29th of May, and six per cent, interest from the 30th of March preceding : so that, from the 30th of March till the 29th of May, the debt is bearing 14 per cent, interest.

And 4. The decree is wrong in calculation. The chancellor makes 8 per cent, from the 1st of January 1801, to the 29th of May 1805, amount to $2518; whereas it is but about $2118.

No counsel appeared for the appellee.

Friday, December 9th, 1814,

*

See generally, monographic *note*on “Usury” appended to Coffman & Bruify v. Miller, 26 Graft. 698.

The principal case was cited in Christian v. Miller, 3 Leigh 83; Erskine v. Henry, 6 Leigh 383.

the president delivered the following opinion of the court.

The court is of opinion, that the contract in this case having been for the delivery of six thousand dollars of 8 per cent, stock of the United States, on the first day of January 1802, with the interest due thereon from the first day of January preceding ; and that stock, not having been delivered according to contract, and being of uncertain value, its true value on the day agreed on for the delivery, to be ascertained by one of the commissioners of the court, or by an issue, (in default of argument by the parties as to its value,) together with the interest due on the same, up to the time, as aforesaid, formed the aggregate sum due by the appellant to the appellee, agreeably to the decision of this court in the case of Groves v. Graves, and not the nominal amount of the said stock, as seems to have been supposed by the chancellor. The court is also of opinion that, in default of the payment of the said sum, and interest at the rate of six per cent, upon the value so found as aforesaid, by a given day, the land in the indenture of mortgage contained ought to have been decreed to be sold, to satisfy *133the same, in the *usual manner; the interlocutory decree of the 30th day of March 1805, therefore, having proceeded upon erroneous principles, and having been, possibly, for a greater sum than was due by the appellant, is, as wel-1 as the last decree erroneous. Decree reversed, and cause remanded to be proceeded in upon the above principles.