| Vt. | May 15, 1851
The opinion of the court was delivered by
The testimony on the part of the defendant, as stated in the bill of exceptions, is, that the note was executed by the
The plaintiff, soon after the making of the contract between Nichols, Burton & Co. and Blin & Barstow, assumed the contract on the part of his firm, and they had no interest in it after that assumption. The defendant’s testimony tended to show, that Blin &. Barstow’s indebtedness to Burton alone, at the date of the notes, was less than the amount of the notes. The testimony also showed, that, under the contract, above recited, between the plaintiff, the defendant and Blin & Barstow, the notes were written, and were signed by the defendant, and were handed to Blin, of the firm of Blin & Barstow, who gave them to the plaintiff, with the same understanding ; but that, after the note was delivered, and at the same interview, the. plaintiff delivered to Blin the bill of the account, — which included the account in favor of Nichols, Burton & Co., and Blin & Barstow’s note to Nichols, Burton & Co., given on settlement of account. The plaintiff said, that if the account was not correct, it should be made so; and Blin did not examine it, farther than to see, that it included Nichols, Burton & Co.’s note against Blin & Barstow; and the account had not been exhibited to the defendant before that, at the negotiations between the parties. Blin gave his note for the balance, $40,39, at the time. The defendant was not present, at the time the notes were delivered to the plaintiff, and knew nothing of the circumstances for several months.
The charge of the court, in regard to this portion of the case, seems to be correct. If Burton took the note, supposing the defendant expected it to be good both for his claim and for that in favor of the company, or for what Almon Blin passed it for, the defendant is liable. But if the plaintiff, at the time he took the note, knew that the defendant signed it with the expectation, that he should only be holden for the plaintiff’s individual claim, then he is only liable tq that extent.
The court think, that the five per cent., charged upon money advanced, in addition to the interest, is usury, and that it is not com
It was decided by this court, many years ago, in the county of Rutland, in the case of Spear v. Newell, not reported, that a custom of merchants in New York, when goods were consigned to merchants for sale and they again consigned them to others to sell, for each house to charge a commission of two and a half per cent., the usual commission for selling goods, was void, as against common reason and common justice. Probably the same reply might, with propriety, be made to the pretence of calling this five per cent, a commission for receiving the money.
It seems to us, also, that too much importance was given to the testimony of Chittenden. That was upon the nineteenth day of July, 1849, — before the second note fell due. The conversation then could not with fairness have been extended beyond the note then demanded, and which was then due. The deduction now claimed would more than be covered by the other note; and the defendant might have omitted to make this claim for deduction upon the ground, that it could with more propriety have been claimed out of the last note.
It is very questionable, whether, if the defendant made out a defect of original consideration, a mere naked promise to pay the note would supply the defect. But under the circumstances it must amount to the same; for it would show, if made with a full knowledge of the facts, that such had at some former time been the understanding of the defendant, — and if of him, a fortiori of Blin & Barstow.
As to the burden of proof, it does not seem to have been of any importance. But, as a general rule, it is fair to say, that the burden of proof rests upon both parties, to make out their own part of the case; and as the defendant claimed the benefit of his own ignorance of the facts, we do not see very clearly, why the charge was not correct. But the two facts are so intimately connected, that we do not comprehend, how they could very well be separated in the mind of the jury. It is not common to separate the same proposition into its elements, in order to shift the burden of proof.
Judgment reversed and case remanded.