166 Ill. 619 | Ill. | 1897
delivered the opinion of the court:
Appellee recovered judgment in the circuit court of Cook county, against appellants, in an action of assumpsit upon a promissory note, and the judgment was affirmed by the Appellate Court. The note was for §4500, with interest thereon at the rate of eight per cent per annum, and was payable at Iowa City, in the State of Iowa. The evidence showed that it was delivered to plaintiff at that place. The plea of the defendants was the general issue, together with notice of the defense of usury, which is the only defense claimed, and upon that question it is admitted that the rights of the parties are governed by the laws of the State of Iowa. On this question the following admission is also made: “There has never been any contention on the part of appellants that the rate of interest reserved in the note in question was not lawful uuder the Iowa law. There is no question but that appellee would have been entitled to recover, on the trial of this suit, eight per cent interest, if he had averred in his declaration that under the law of Iowa such rate was allowable on a promissory note, and had, at the trial, proven the law.”
The defendants did not offer any evidence, but objected to the introduction of the note, and asked an instruction that the plaintiff was not entitled to recover any interest. Their objection was overruled and the instruction refused. Their contention is, that the court erred in admitting the note and refusing the instruction because the plaintiff did not aver and prove the law of Iowa. In this case, however, the burden of averring and proving that law did not rest upon the plaintiff. The rule as laid down in the decisions is, that he who relies upon a foreign law, either to recover or to defend, must plead and prove such law as any other fact. If a note or contract governed by the law of another State provides for the payment of interest, and a recovery is sought for such interest, in order to make the defense that the agreement is invalid under such law such defense must be averred and proved like any other fact, for the reason that our courts cannot judicially know what such foreign law may be. If, however, the plaintiff seeks to recover interest, not by virtue of a contract, but by reason of a foreign law allowing the same, he must aver and prove such foreign law upon which he relies to establish his right. (Chumasero v. Gilbert, 24 Ill. 293 and 651; Mason v. Dousay, 35 id. 424; Deem v. Crume, 46 id. 69; Miller v. Wilson, 146 id. 523; Morris v. Wibaux, 159 id. 627.) In this case plaintiff sought a recovery for interest by virtue of a contract, and not by virtue of the laws of the State of Iowa, and if there was any infirmity in that contract under those laws, the defendants could only avail themselves of such defense by averring and proving that law. But in this case it is expressly admitted that the contract is valid under such law, and when plaintiff offered proof of the law of Iowa, defendants objected and the evidence was excluded on such objection. The court did not err in admitting the note or refusing the instruction.
The note contained an agreement that if it should be collected by an attorney a reasonable amount should be allowed as an attorney’s fee, and taxed with the costs in any suit brought thereon. The court admitted, against the objection of defendants, evidence of what would be a reasonable attorney’s fee for collecting the note, and refused to instruct the jury that such fees could not be recovered in the suit. The court was in error, since, if plaintiff was entitled to recover any attorney’s fee, it was not due when the suit was brought and could not be included in the same action. (Nickerson v. Babcock, 29 Ill. 497; Easter v. Boyd, 79 id. 325.) But this error was cured by a remittitur of an amount exceeding the evidence of what would be a reasonable fee, and the judgment which was entered was less than the amount of the note and interest.
The judgment will be affirmed.
Judgment affirmed.
