| Conn. | Jul 15, 1831
It was claimed, in the court below, that a part of the transactions between the plaintiffs, and Miles, Strong & Miles, were usurious. This claim regards the charge of 2 1-2 per cent. commissions, for meeting and taking up the drafts, on which the plaintiffs were liable as acceptors, but which it was the duty of Miles, Strong & Miles to pay. It was left to the
It is now contended, that this question was not properly left to the jury: that there was, indeed, no question upon which the jury were called to pass: that the transaction, as admitted, was, per se, usurious, and that the judge ought so to have decided.
I do not think there is any foundation for this claim. Whether a transaction be, or be not, usurious, is generally a question of intention; and that question is not only proper for the consideration of a jury, but is within their exclusive cognizance. At the same time, it is not denied, that a contract may be, per se, usurious. As if, for instance, more than the lawful interest be reserved on the face of a’security, for money loaned, and that be unexplained, the corrupt intent might be irresistibly inferred; and it would be the duty of the court so to instruct the jury. But this is not that case. The transaction does not purport to be a loan. The contract is ostensibly a contract of compensation for the trouble and inconvenience of raising money to meet the debt of another. That such compensation may be stipulated for and received, without subjecting the party to the imputation of usury, was expressly decided, in the case of Trotter and Douglass v. Curtis, 19 Johns. Rep. 160.
The facts in that case were substantially the same as in this; and the cases are not distinguishable in principle. The only distinction taken at the bar, was, that in this case, there was a charge of one half per cent. for accepting the draft; and therefore, it is said, there could be no propriety in a further charge for providing funds to meet those drafts when they fell due. It is difficult to see how this consideration can affect the question. The charge of one half percent, was a compensation to the plaintiffs for the use of their names. They lent their credit, and their doing so, for a compensation, imposed on them no additional obligation to meet the drafts when they came to maturity. It was still the duty of Miles, Strong and Miles to provide for and pay them.
The case of Dunham v. Dey, 13 Johns. Rep. 40. has been cited, by the defendant. That case is wholly unlike the present. There was an exchange of notes, and a commission of 2 1-2 per cent. paid to the plaintiff on the exchange. The
Here, the transaction was, on the face of it, a compensation for trouble. Whether, such was the real nature of the transaction, or whether it was a cover for a loan of money, and a contrivance to evade the statute, was a question of fact for the jury. Palmer v. Baker, 1 Mau. & Selw. 56. Trotter & al. v. Curtis, 19 Johns. Rep. 160. Kent v. Phelps, 2 Day, 483. That question was distinctly put to them, and they have answered it. I see no reason for disturbing the verdict on this ground.
2. It is contended, that the record, in the action of debt on judgment, brought by the plaintiffs, against Miles, Strong & Miles, was improperly admitted in evidence; and on that ground, a new trial is sought.
In order to a determination of this questien, it may be proper to advert to the circumstances under which, and the object for which, the evidence was offered.
The plaintiffs had recovered a judgment against Miles, Strong & Miles, on their original cause of action. The defendant insisted, that this judgment was in part satisfied; and so far as that satisfaction went, that he was, of course, discharged from liability on his guaranty. To prove this, he offered and read in evidence the record of the judgment, together with the execution and the return of the officer thereon, shewing, that the same had been levied on lands of Miles, Strong & Miles, which had been duly set off; and that, in this mode, the execution was nearly satisfied.
To repel this evidence, and to shew that no satisfaction had in fact been obtained, the record in question was offered. This proved, that the levies relied on, by the defendant, were made by mistake: that the lands levied upon and set off on execution, were not, when the levies were so made, the property of Miles, Strong & Miles, but of one Edward Carrington, to whom they had, long before that time, been conveyed.
To the evidence thus offered, two objections are taken.
First, it is objected, that the action of debt on judgment does not lie, where there is an apparent satisfaction on the record; but that the only remedy is by scire facias, to obtain an alias execution. Secondly, the judgment is between other parties; and therefore, the defendant cannot be affected by it.
Can the defendant, then, object to this judgment, on the ground, that it is erroneous, as between the parties? Whether any judgment, between them, being res inter alios adjudicata, can affect this defendant, is another question, which will be hereafter considered. But admitting, that he may be thus affected, by a valid judgment, can he question this judgment, because it is erroneous? Or, in other words, can he be permitted to do what the party confessedly could not do, viz. impeach this judgment collaterally? I think not; and that it furnishes no objection to the admission of this record, that the judgment may be erroneous. Whether it be so or not, I do not think it necessary to inquire.
I now come to consider the objection, that this judgment was between other parties; and therefore, not admissible against this defendant.
It is certainly true, as a general rule, that judgments are binding on those only, who are parties to them. But to this rule, there are exceptions; and there are many cases, where judgments may be given in evidence between those who are not parties. A moment’s attention to this case, will, I think satisfactorily show, that it fails within the exceptions, rather than within the rule. How did these parties stand, and what was the fact in dispute between them? The defendant insisted, that the debt originally due to the plaintiffs from Miles, Strong & Miles, had been satisfied. This was denied; and this was the point in issue between the parties. To prove this issue, the defendant offered in evidence the judgment between these two parties, together with the execution and the return of the officer. This evidence was offered to prove a fact between these parties, to the benefit of which fact, the defendant was entitled. It went directly to the point of damages.
It must be very obvious, that the proceedings under a scire facias would be open to the same objection; and so would every other proceeding between the parties to the original judgment.
The objection seems to me to assume this broad ground, that the defendant may prove a fact, which goes either to defend the action, or to the point of damages, and which cannot be disproved, by any species of evidence. I am not prepared to sanction such an anomaly in judicial proceedings.
But again; is the defendant a stranger to the judgment, so as that it is, as to him, res inter alios judicata? He stood in the relation of surety to Miles, Strong & Miles. True, he was not, and could not have been, a party to the judgment against them; but he was privy to the contract, which was the foundation of the judgment. In Willey v. Paulk & al. 6 Conn. Rep. 74. which was an action brought on a probate bond, against the sureties of a deceased executor, and the breach assigned was, that he had neglected to pay a judgment recovered against him, by a creditor of his testator, it was held, that the defendants were privies in contract to such judgment; and that it was, therefore, admissible and conclusive to shew a breach of the bond and the amount of damages. It seems to me, that the principle established in that case, is decisive of the question now before us. See also Swift’s Ev. 15. Bissell v. Edwards, 5 Day 94. Blasdale v. Babcock, 1 Johns. Rep. 517. Green v. The New River Company, 4 Term Rep. 589.
The record, therefore, was properly admitted in evidence; and the motion for a new trial must be denied.
New trial not to be granted.