10 Barb. 321 | N.Y. Sup. Ct. | 1851
The counsel for the plaintiffs asked the court upon the trial of this cause, to charge the jury in substance, that unless they believed from the evidence that upon the loan of money represented by the note, there was an agreement to pay interest, of the exact character set up in the answer, the plaintiffs were entitled to recover. The judge re
The real question, however, involved in the refusal of the judge to charge as the plaintiffs requested, is that of variance between the pleadings and the proof. Formerly, when usury was pleaded to an action on a specialty, or set up in the plea or answer to a bill in equity, the defendant was required to prove the agreement as stated; and if the proofs disclosed a usurious agreement different from that stated in the plea or answer, the defendant failed in his defense. (3 Durn. & East, 538. 4 Paige, 533.) So that it sometimes happened that a party with a good defense of this nature, was defeated upon the trial or hearing, because the facts by which it was to be made out were imperfectly known, or inaccurately stated at the time the issue was framed. This is also one of the defects in
The jury rendered a verdict for the defendant, and the plaintiffs made two other points upon the argument at bar. 1st. That the judge erred in the charge he did give to the jury. 2d. That the verdict is unsupported by the evidence. Both these points must, I think, be determined for the plaintiffs. The action was upon a promissory note; that it was made by the defendant, was payable to the order of the plaintiffs, and was a renewal or continuation of a series of notes, the original of which was given for money lent by the plaintiffs to the defendant, were facts established at the trial. The only defense was a usurious agreement to pay at the rate of fifty cents per day, for the use of each hundred dollars mentioned in the note. The burthen of this defense rested upon the defendant. 'When the plaintiffs rested their case their right to a verdict was clear, and unless the usurious agreement was made out by the evidence to be given, the court and jury were under a binding obligation to see that this right was not defeated. The defendant examined three witnesses—two of them, the plaintiffs in the suit, and the other, James Bennett, the indorser upon certain checks which accompanied the notes. As I read the testimony, not one word was elicited, from either of these witnesses, tending to estab
When the proof was closed and the cause had been summed up by the counsel on both sides, the court charged the jury that “ the only question was, whether the plaintiffs contracted to re
McCotjn, J. concurred.
Morse, J. was of opinion that the verdict was against the weight of evidence, and should be set aside on payment of costs; but that it was not a verdict without any evidence- to support it.
New trial granted, and the costs to abide the event.