16 Kan. 190 | Kan. | 1876
The opinion of the court -was delivered by
This was an action to foreclose a note and mortgage. The note was payable to Brown Bros., was indorsed by them to one R. B. Waite, and by him to the plaintiff. All this, as admitted by the pleadings, took place before maturity. The answer, admitting that $500 was due, (that being the amount' actually borrowed and received by defendants,) and offering a judgment, alleged that the balance of the note, $150, was for illegal and usurious interest, and that the plaintiff “took and received said note with full and complete knowledge of the nature and terms of said usurious and illegal contract.” As no reply appears in the record, it
Counsel for plaintiff in error call our attention to a dozen or more matters in which they claim the court erred. It is unnecessary for us to notice all these in detail. It is obvious that, upon the supposition that the reply was a simple denial, the defendants were called upon to establish two propositions —first, that the amount of the note in excess of $500 was for illegal and usurious interest, and second, that the plaintiff bought with knowledge. And testimony which tended to prove either fact was competent, irrespective of the question whether the other fact were proven or not. Counsel on the trial objected to the admission of a good deal of testimony tending to prove the first fact, as incompetent, because the second fact was not proved; and now present these matters to this court as points of error. It seems unnecessary to more than state the facts to show the correctness of the ruling.
Again, counsel insist that the court improperly permitted the jury to separate during the progress of the trial. As it does not appear that they were permitted to separate except during the intervals of the session of the court, and before retiring to consider of their verdict, it is difficult to see wherein there was any improper separation.
It appears that in addition to the general verdict the plaintiff requested the court to submit to the jury certain questions of fact, and require answers thereto. This the court refused. It seems to us that these questions were pertinent and appropriate, and should have been submitted. The first ran directly to the point of plaintiff’s knowledge of the usurious