14 Wis. 39 | Wis. | 1861
By the Court,
Yiewed in the light of high and well settled authority, this case presents no question of doubt or difficulty, save that of the severance of the original joint indebtedness of the defendant and Travis. In all other respects it can hardly be distinguished from the case of Johnson vs. Johnson, 11 Mass., 359, cited by counsel for the plaintiff in error, the doctrines of which are sustained by very many adjudications in addition to those so numerously named by the same counsel. The principles upon which those doctrines rest are quite obvious. It is a clear rule of the common law that a subsisting simple contract is not discharged or extinguished by the acceptance of another contract of the same nature, given by the same party and founded upon the same consideration, unless it be expressly so agreed. The new contract is considered as nothing more than a new evidence of the same original contract or indebtedness, and if it is not performed the party may resort to his remedy on the latter. This being the case when the original and substituted contracts are both valid, it is a fortiori so,
As to whether the original joint indebtedness of the defendant and Travis was so severed as to enable the plaintiff, irrespective of the remedy given by law upon the note which was adjudged void for usury, to maintain an action against the -defendant alone for the sum of money specified in it, and which constituted a part of the original joint indebtedness, we are of opinion that the facts stated in the complaint show that it was. The test by which to determine this question undoubtedly is, whether the complaint exhibits such a condition of things that, leaving the usurious note entirely out of the case and considering it as never having been made, the plaintiff could have maintained a separate action against the defendant for the antecedent indebtedness in consideration of which it was given. The existence and validity of the previous joint indebtedness are unquestioned. It is alleged to have accrued upon the joint purchase by the defendant and Travis of a quantity of land of the plaintiff, of which the defendant and Travis, by a mutual understanding and agreement, were each to take and own distinct parcels, and to pay and discharge the joint debt in proportion to the value of their respective shares. It is also alleged that after the last of the four joint promissory notes became due, the three first being paid, and all of them having been secured by a mortgage on the land purchased, the plaintiff and defendant entered into an arrangement and agreement between themselves, by which the defendant was to pay to the plaintiff his share or proportion of said last note according to the division of the land so to be made between the defendant andTravis; that in pursuance of the terms of that agreement the defendant paid to the plaintiff his share or proportion, partly in money and the residue in his note payable nine months after date, which was adjudged void for usury; and
Whilst the doctrine of the courts of Massachusetts, that the taking of a promissory note for' an antecedent debt is prima facie a satisfaction, is not insisted upon as the law of this state, it is still contended that it was competent for the plaintiff to give it that effect by his pleadings, and that he
The position that the plaintiff cannot recover without first paying or tendering to the defendant the usurious interest received upon the note and on account of which it was adjudged void, is not sound, for the reason that he does not proceed upon the usurious contract at all, but upon the original indebtedness, and as if no such contract had ever been made. That indebtedness being unaffected by the subsequent void agreement, the latter, whether the usury were paid or promised merely, can constitute no defense, except perhaps that the defendant may, if he chooses, set off the usury actually paid against the claim of the plaintiff; or he might, within one year, have recovered treble the amount in an action under the statute. Wood vs. Lake, 13 Wis., 84. The authorities cited by counsel apply to cases where the loaning of the money and the giving of the usurious note or security are one transaction, the money being advanced in consideration of the agreement to pay usury, and as a part of it. In such cases, although the money actually loaned is a valuable consideration, yet there can be no recovery upon it until the usurious taint is removed, which can only be done by the mutual agreement of the parties. If this be done, and the usurious interest received be either refunded or otherwise legally adjusted, the money loaned is a good consideration for a subsequent lawful promise to repay it, and it was with reference to such transactions that the courts were speaking.
Lastly, it is urged that the judgment upon the note is a bar to an action upon the original indebtedness because the
Judgment reversed, and a new trial awarded.