¶1- I dissent. While there are general charges of conspiracy in the answer, there are no facts alleged to justify a finding that the plaintiff who purchased this mortgage in question from the mortgagee took part in any scheme by which the defendants were compelled to pay or did pay the broker a bonus for obtaining the loan by which usury was exacted. It was the defendants who employed Zittel & Sons to procure the loan. So far as appears Zittel & Sons acted solely as brokers or agents of the defendants. I suppose the defendants could agree to pay Zittel & Sons any sum as compensation for their services in procuring the loan, and the allegation that the money exacted by Zittel & Sons as a condition for obtaining this loan was paid to the plaintiff or to Zittel & Sons, being in the alternative, was not an allegation that the plaintiff ever received any part of this bonus or exacted a sum in excess of six per cent interest on the loan. It is the lender that must exact the illegal bonus or interest. The mere facts that the borrower’s agent exacted it, or received it, does not connect the lender with the transaction so as to make the loan usurious. There is no allegation that Zittel & Sons were the plaintiff’s agent; that Zittel & Sons when exacting this bonus acted on behalf of the plaintiff; that the plaintiff did any more than make the loan at the request of the defendants’ agent who procured it, and no direct allegation that the plaintiff ever received any of the usurious interest or bonus.
¶2I think the answer was insufficient, that the court below was justified in refusing to take evidence, and that the judgment should be affirmed.
¶3Judgment reversed and new trial ordered, with costs to appellants to abide event. Order to be settled on notice.