Austin v. Bacon

| Wis. | Jun 15, 1871

Cole, J.

These are cross-appeals from different parts of the same judgment.

The questions involved in each are principally matters of fact. I have carefully read the printed case, and think the evidence warrants the following conclusions:

First. That the mortgagor, Freeman Bacon, on the first day of April, 1859, the day they bear date, executed and delivered the $2,000 note and mortgage mentioned in the pleadings and evidence.

~ Second. That this note and mortgage were executed and delivered at that time in pursuance of a previous agreement and understanding by and between the said mortgagor and the mortgagee, John Austin, Sen., by which Bacon agreed to give these securities for the amount therein specified, and take as much seed wheat as he might want from Thomas H. Austin at $1.25 per bushel, and enough wheat from John Austin, Sen., at $1.00, to make, with the balance unpaid on the note and mortgage of $1,762,34, given April 18th, 1857, the sum of $2,000.

I do not think that the testimony sustains the conclusion that John Austin, Sen., previous to April 1st, 1859, agreed to loan Freeman Bacon an amount of money sufficient, with what remained unpaid on tbe note and mortgage of $1,762,34, to make tbe sum of $2,000, and then compelled Bacon, in lieu of money, to take wheat and other grain, with a view to evade tbe usury laws of tbe state and for tbe purpose of obtaining a greater rate of interest than twelve per cent., which was tbe rate of interest Bacon was to pay. It is true, this is Bacon’s account of tbe transaction; but I am not satisfied that bis statements are reliable and are entitled to credit as against tbe opposing testimony. But it seems to me tbe decided weight of testimony is in support of tbe opposite conclusion, and establishes tbe facts already stated.

If this view of tbe effect of tbe testimony is correct, then it follows as a matter of course, that tbe $2,000 note and mortgage are perfectly valid securities. This is certainly so unless it can be said there was usury in tbe note and mortgage of $1,762.34, for tbe reason that compound interest was included in them when they were executed. That compound interest, or interest upon interest, was included in this note and mortgage, does not admit of doubt; but I am satisfied from tbe evidence that this was done by tbe agreement of tbe respective parties, tbe debt- or and creditor, and without any corrupt intent to violate tbe law upon tbe subject of usury. It was nothing more than a contract for tbe payment of interest upon interest previously due, and payable according to tbe note and mortgage given June 15th, 1852. Such contracts have been sustained by this court.

This is all we feel called upon to say upon tbe merits of these appeals. But we cannot take our leave of these causes without an expression of dissatisfaction at tbe manner in which they have been presented to us. Tbe printed case contains nearly seventeen hundred folios, and it is not too much to say that it might and should have been condensed into at leást one-tenth tbe space it fills. A vast amount of utterly irrelevant and immaterial matter is included in tbe printed case, which serves no earthly purpose except to increase tbe labor of tbe members of this court in examining and deciding the cause. It requires two or three days to wade through the case to see what it contains. We feel that counsel have no right to impose such wholly unnecessary labor upon us. The testimony bearing upon the issues of fact might have been compressed into a comparatively brief space. We must insist upon the observance of the rule, particularly in actions of this character, that the printed case contain an abstract of the testimony, and that all irrelevant and impertinent matter be omitted therefrom. An observance of the rule would relieve the members of this court from much embarrassment and difficulty in deciding causes, especially those involving purely questions of fact.

It follows from the views we have expressed upon the testimony, that so much of the judgment as is appealed from in each of these appeals, must be reversed, and that the cause must be remanded with directions to render judgment of foreclosure for the amount due upon the $2,000 note and mortgage.

By the Court. — It is so ordered.

LyoN, J., took no part in this decision, having presided at the circuit when the cause was decided.

A motion for a rehearing was denied at the June term, 1871.