Gerlaugh v. Bassett, 20 Wis. 671

20 Wis. 671 | Wis. | 1866

Cole, J.

It appears to us tbat tbe jury must have found, under tbe charge of tbe court, tbat tbe note of November 15th, 1859, was not usurious. This is tbe most rational and satisfactory construction to be given to tbe verdict, and tbe only one which will sustain it to tbe full extent. Eor if tbe jury bad been satisfied from tbe evidence tbat tbe note of November 15th, 1859, was usurious, then it was admitted in tbe plaintiff’s pleadings tbat there must be a deduction from tbe principal sum loaned, of at least $90. And tbe court instructed tbe jury tbat if they believed from tbe evidence tbat tbe note of November, 1859, was usurious, then tbe plaintiff could only recover tbe principal sum loaned as expressed in tbe note of November, 1858, less such sums as bad been paid thereon as interest over and above tbe rate tbe parties were permitted by law-to contract for, together with interest on such excess. Tbe recovery was for $3000 — -too large an amount unless tbe jury arrived at tbe result tbat tbe note of November, 1859, was not affected with usury. In respect to this note, tbe court told tbe jury tbat if they found tbat it was given wholly for tbe principal sum loaned, then it was not usurious on account of any usury there might have been in tbe note of November, 1858, providing such usury was paid and agreed to be paid solely and entirely for tbe forbearance of tbe loan of 1858, and was not made a condition of or an inducement to tbe giving of tbe note sued upon. Further, tbat if they found there was usury in tbe note for $500 (in this, tbat in fact only $475 was advanced upon it), or in tbe first $8000 note, and tbat tbe amount of sucb usury bad not been deducted from tbe-principal, -but entered into and formed a part of tbe last note, tben tbe last note was usurious, and no recovery could be bad upon it. And again tbe jury were instructed tbat when usury enters into tbe consideration of a contract in its inception, no renewal of it would bave tbe effect to remove tbe taint, so long as it could be traced into tbe substituted security.

It was. claimed by tbe defendants, and evidence was introduced tending to establish tbe defense, tbat tbe several contracts or loans mentioned in tbe pleadings were usurious, and tbat tbe note of November 15tb, 1859, was void for tbat reason. Tbe plaintiff, on tbe contrary, while admitting tbat tbe note of 1858 was usurious, alleged tbat this note was surrendered up and a new note given for tbe real sum tben due, namely, tbe money originally loaned, and tbat this was done for tbe purpose of putting an end to tbe original usurious contract. Tbat it was perfectly competent for tbe parties to tbe transaction to reform tbe contract, expunging from it all usurious taint, and arrange a new contract concerning tbe sum loaned, which should be legal and binding, is a proposition well settled by tbe authorities. Barnes v. Hedly, 2 Taunt., 184; Wright v. Wheeler, 1 Campb., 165, note; De Wolf v. Johnson, 10 Wheat, 367; Hammond v. Hopping, 13 Wend., 505; Miller v. Hull, 4 Denio, 104. Tbe note of November 15th, 1858, was not wholly void, but by chap. 55, Laws of 1856, was “ valid and effectual to secure tbe repayment of tbe principal sum loaned and if tbat note was given up and cancelled in order to get rid of tbe usury, and tbe note of November 15th, 1859, was given for tbe original debt, it is legal and binding. See tbe cases of Dunbar v. Wood, 6 Vt., 653; Postlethwait v. Garrett, 3 Monroe, 345; Fowler v. Garret, 3 J. J. Marsh., 681; Craig v. Butler, 9 Mich., 21; Smith v. Stoddard, 10 id., 148; Clark v. Phelps, 6 Met., 296; which abundantly sustain this doctrine. It was suggested tbat tbe case of Rock County Bank v. Wooliscroft, 16 Wis., 22, was in conflict witb tbis view of tbe law; but tbis is a misapprehension of tbe facts of that case. In Rock Co. Bank v. Wooliscroft, wbicb was tried by tbe court, a j nry being waived, tbe judge found as a matter of fact, that tbe usury wbicb bad entered into tbe previous contract of August 6tb, 1857, was carried forward and introduced into tbe note sued upon; and as tbe bill of exceptions did not purport to contain all tbe evidence offered on tbe trial, we adopted this finding as conclusive upon tbe facts. And if usury entered into tbe note of March 21st, 1860, tbe contract sued upon, there can be no question but it was void. So tbis case, when fully understood, it will be seen, does not decide that where parties to an- usurious contract exclude tbe usury, and make a new contract for tbe payment of tbe sum actually loaned, such latter agreement is not binding because not founded upon a legal consideration. There was evidence in tbe case at bar from wbicb-the jury might have found that tbe usurious contract bad been reformed by tbe parties cancelling tbe usurious note of 1858, and by giving tbe note of November 15, 1859, for tbe principal sum loaned, excluding all usury. And considering tbe various instructions of tbe court upon tbe point, and tbe amount of tbe verdict rendered, we think it must be assumed that tbe jury took tbis view of tbe evidence. Had tbe jury believed that tbe extension of tbe time of payment, or tbe giving of tbe second note, was upon tbe condition that tbe usury contracted for by tbe previous note should be paid, they must have rendered a different verdict. Tbe instructions of tbe court are clear and specific upon tbe point that such a condition would render tbe contract sued upon usurious and void.

It is said, if tbe jury really believed that tbe note of November 15th, 1859, was not usurious, they should have given a verdict for a much larger sum than $3000. It is very probable that the jury gave too small a verdict, but this is an error of which tbe defendants cannot complain.

It results from these views that tbe judgment of the circuit court must be affirmed.

By the Court. — The judgment is affirmed.