#### M. E. Ammerman, Appellee, v. Jas. C. Ross, Appellant.

Interest: broker’s commission: usury. The fact that a sum, charged as commission hy one haying in his hands the money of another to loan, is included in the note given hy the borrower, is not sufficient evidence in • itself to eharge the lender with notice that usurious interest has heen charged.

*Appeal from Dallas District Gowrt.*— Hon. A. W. Wilkinson, Judge.

Wednesday, January 27, 1892.

. Action in equity for a judgment on a promissory note, and for the foreclosure of a chattel mortgage given to secure the payment of the note. There was a defense of usury. It was determined that the claim of usury was not established by the evidence, and a judgment and decree were entered for the plaintiff, as prayed in the petition. The defendant appeals.

*Affirmed.*

*M. H. Baugh*and *B. 8. Barr,*for appellant.

*Cardell*& *Nichols,*for appellee.

Rotheock, J.

It appears from the evidence that in the year 1886 Marshal Ammerman and Adolphus Ammerman were partners in business as merchants and loan brokers at Perry, in Dallas county. They were not loaning their own money, but the money of others. On the twenty-second day of February, 1886, the defendant made an application to said Marshal Ammerman for a loan. The amount of money which the defendant required was three hundred fifty dollars. Ammerman paid the defendant three hundred fifty dollars, and took his promissory note for three hundred *360sixty-seven dollars and fifty cents, payable to tbe order of M. E. Ammerman in one year from date, with interest at the rate of ten per cent, per annum. At the end of the year the note was extended for a year by contract between the parties, and five per cent, was added in addition to the ten per cent, named in the face of the note. Certain payments were after-wards made on the note, and a new note was taken, in which the sum of five per cent, was included in addition to ten per cent, interest. When the first note was taken, the defendant executed a chattel mortgage to M. E. Ammerman to secure the payment of the note. The mortgagee was named in the mortgage as M. E. Ammerman, “of Marion, Iowa;” and the mortgagee was further named in the mortgage as M. E. Ammer-man, her heirs and assigns.” Marshal Ammerman was not at that time loaning any money of his own. The money he loaned to the defendant belonged to his mother, M. E. Ammerman, and the note was made payable to her.

The defendant claims, and he so testified as a witness, that, when he borrowed the money, he believed that the note and mortgage were made to the man he did business with, and not a woman, whose residence was in Marion; Iowa, and that he did not know that the five per cent, added to the legal rate was a commission charged by Marshal Ammerman for procuring the loan for him from another A careful examination of the evidence leads to the conclusion that the decided preponderance of the evidence is to the effect that the defendant knew when he borrowed the money, and at each renewal, that he was not borrowing of Marshal Ammerman, and that the five per cent, in addition to the ten per cent, interest was a commission to Marshal Ammerman for procuring the loan for him. We need not set out the evidence in detail.

The only real question in the case is, did M. E. Ammerman.place her money in the hands of her son, *361intending that he should loan it out for her at usurious interest! There is no evidence that she did. It was incumbent on the defendant to establish his defense of usury by a preponderance of evidence. *Hough v. Hamlin,*57 Iowa, 359. As there is no evidence that M. E. Ammerman authorized the loaning of her money at more than the legal rate, the presumption is that she did not intend to do so, or as is said in *Gokey v. Knapp,*44 Iowa, 32, “an authority to violate the law will never be presumed.’7 That case is, in its facts and in principle, very much like the case at bar.

Counsel for the appellant place much stress upon a statement of Marshal Ammerman, in his testimony in the case, in reference to the manner in which he received his commission, in which he said, “I got that of my mother.77 It is claimed that this statement shows that the plaintiff had notice of the usurious character'of the contract. But it is evident from the whole of the testimony of the witnesses that he did not receive the seventeen dollars and fifty cents, or five per cent, commission, from her, as a separate transaction. Her money was in his hands to loan; and, taking his testimony throughout, it shows that he merely retained the commission from the amount in his hands. Indeed, he expressly so stated. There is nothing in his testimony tending to show that the plaintiff knew anything more than that a loan of three hundred and sixty-seven dollars and fifty cents was made to the defendant.

A statement of the facts in this case shows that it is essentially different in principle from the case of *Erickson v. Bell,*53 Iowa, 627, which is relied on by the defendant. In that case the note for the borrowed money was made payable to the agent, and the borrower had no knowledge that the person from whom he borrowed the money was acting for ano’ther. It was held that the borrower could avail-himself of the defense of usury. In the case at bar the defendant knew that Marshal Ammerman was acting as an agent, and knew *362that he exacted a commission of the defendant for procuring the loan for him.

The judgment and decree of the district court will bo AFFIRMED.