261 P. 642 | Wash. | 1927
This is an appeal from a judgment of the court after verdict by jury in favor of the plaintiff in the sum of $2,772.29, in an action to recover usurious payments.
This case was before us recently. (Cannon v. Seattle TitleTrust Co.,
[1] It is urged upon this appeal that there was insufficient evidence; that the evidence was not of that clear and convincing kind required in this class of cases, and that the court should have sustained the challenge thereto. We have examined the record and conclude that the evidence was substantially the same as that offered or proved at the former trial which we held sufficient. Whether our opinion in the former decision conflicts in any respect with our earlier decision in Wakefield v. Greenway,
[2] Error is also claimed because the court instructed the jury that, if they found a verdict for the plaintiff, it should be in the amount of $2,772.29, and did not leave the jury to determine the amount. The amount was purely a matter of mathematical tabulation. If the respondent was entitled to recover at all, that was the exact amount he was entitled to under the law, and there was no issue upon it to be decided by the jury. McCush v. Whatcom Timber Co.,
If the jury found for the plaintiff and failed to fill in the amount of recovery the court might well have *693 done so, since a recovery in any other amount would have been contrary to law.
Many assignments of error are specified against the refusal of the court to give a number of instructions. We have carefully read those given by the court, and those refused. The jury were fairly instructed and further instructions would have tended only to confuse, rather than enlighten, them.
Judgment affirmed.
MACKINTOSH, C.J., FULLERTON, MAIN, and MITCHELL, JJ., concur. *694