62 Neb. 759 | Neb. | 1901
Verdict and judgment went against the defendant in the trial court, and he brings the cause here by proceedings in error. The petition is assailed for the first time in this court as failing to state a cause of action and being insufficient to support the judgment rendered. The cause
It is altogether warrantable to infer from the pleading as thus drawn that the amount claimed to be due on the instrument was due from the makers, who are the defendants and the adverse parties to the action. The note having been, as alleged, executed in favor of and delivered to the plaintiff, the logical and reasonable inference is that whatever sum is alleged to be due thereon is due to the plaintiff, as payee, to whom it is alleged the instrument was delivered. There is no presumption that the note has passed out of the plaintiff’s hands or that it has been transferred to some third party. On the other hand, when it is alleged that the note was executed and delivered to
In the answer the defendants pleaded that the contract on which plaintiff grounded its action was tainted with the vice of usury. The trial court, by an instruction, withdrew the question from the jury and complaint is made because thereof. The note sued on was a renewal of a prior note given for a machine purchased from the plaintiff. At the time of the renewal of the first note, in the computation of interest a mistake appears to have been made of the sum of $1.44. There is an utter lack of evidence to justify the conclusion that the parties intended to or did enter into a usurious contract. The very essence of a contract usurious in character is the agreement to take or receive and to pay a greater rate of interest than that allowed by law. Treating the renewed note as a contract for the loan or for the forbearance of money, and yet the evidence falls far short of proving an agreement between the parties to charge and receive a usurious rate of interest. Such a mistake under the most rudimentary principles of justice, could not and should not be converted into an unlawful contract. 27 Am. & Eng. Ency. Law, 920, 970, and authorities therein cited; Johnson v. Shattuck, 53 S. W. Rep. [Ark.], 888; Rushing v. Willingham, 31 S. E. Rep. [Ga.], 154. The trial court, in our judgment, properly withdrew the question of usury from the jury.
It is next contended that the court erred in its third instruction to the jury, in which, in speaking of the law in respect of an alleged warranty of the machine for which the note was given and a breach thereof, it was stated:
We observe no prejudicial error in the record, and for the reasons stated the judgment of the trial court should be
Affirmed.