53 Iowa 627 | Iowa | 1880
I. The plaintiff claims that the note secured by the chattel mortgage is usurious, and that the payments made thereon, and upon the unlawful interest, are sufficient to
The evidence tends to prove the following facts: In 1875 plaintiff borrowed of D. O. Thomas $100, for which he gave his note for $120, and ten per cent per annum interest, payable one year after date. Certain payments were made upon this note. All the business was done by D. C. Thomas, and" plaintiff had no reason to believe that he was acting as the agent of another. This note was indorsed by D. C. Thomas, without recourse, to John Lewis. It was usurious. In 1878 plaintiff arranged with D. C. Thomas for an extension or renewal of the note by the execution of a new note and mortgage, the contract providing for the payment of unlawful interest. When the note and mortgage were juesented to plaintiff for execution he discovered that Thomas Thomas, the father of D. C. Thomas, was made the payee of the note and mortgage. This instrument secured the balance due upon the first note with usurious interest. The plaintiff was informed by D. C. Thomas that he was procuring the loan from Thomas Thomas. The amount due on the first note, without deducting the amount of usury paid, was $95. The second note was due in ten months and was for $115. D. O. Thomas executed and handed to plaintiff a receipt for $18 for services in procuring the loan. But nothing was paid; the $18 was included in the note. No money passed to or from either of the parties in this transaction. It does not appear that the last note was ever in the hands of Thomas Thomas. D. O. Thomas acted as agent for his father and received certain payments made on the last note. „ The payments on the first note were also made to him. The first note D. C. Thomas gave to Lewis, who immediately returned it and took a receipt which specified that it should be held for
The court correctly instructed the jury that if the two notes were separate transactions the last one was not subject to the usury paid on the first, but if the last one was a continuation of the original transaction, was a renewal of the first, it was usurious.
II. The court gave the jury the following instruction, which is complained of by defendant:
The instruction contemplates the facts that the note referred to was made payable to D. O. Thomas, and that plaintiff had no knowledge that the money was not really the property of the agent, but believed that it was.
A person dealing with an agent in regard to personal property entrusted to him ,by the principal, without knowledge that the property is not owned by the agent, but supposing' him to be the owner thereof and the principal in the transaction, will possess all the rights that he would have acquired
In support of his position that the instruction is erroneous .counsel for plaintiff cites Lee v. Chadsey, 3 Abbott, Court of Appeals Decisions, page 43, and Estevez et al v. Purdy et al, 66 N. Y., page 446. These cases, as well as Bell et al., Administrators, v. Oliver, 32 N. Y., 165, and Condit v. Baldwin, 21 N. Y., page 219, to the same effect, differ from the case before us in that the notes involved in the several actions were not made payable to the persons acting as agents. The note referred to in the instruction was payable to D. O. Thomas, and he was not known by the defendant to be the agent of Lewis. The fact that the notes were payable to the principals gave the respective makers notice that the persons with whom they dealt were agents. The defendant in this case had no notice of that kind.
Under the rules of evidence prevailing at common law, the interest of a witness renders him incompetent and may be •shown to exclude his evidence. Under our statute a witness is not incompetent by reason of interest, but it may be shown for the purpose of lessening the credibility of his testimony.
A different rule was recognized in Denn v. Jones, 1 Cox’s Rep., 46; Anon., 2 Haywood, 340, and Colston v. Fichols, 1 Har. & John., 105. The last case was overruled in Stimmel v. Underwood, supra.
Lucas v. Flinn, 35 Iowa, 9, is not applicable to the question before us. In that case a party to the action testified to a fact claimed by him to be relevant to the issues. A witness was permitted to give testimony of a declaration of the party in conflict with his testimony. This was held to be correct upon the ground that the fact testified to by the party was to be regarded as in issue in the case.
Reversed,