Kassing v. Ordway

Jan 22, 1897
Reporters:
,
Before:
Robinson
Robinson, J.

The intervener seeks to recover of the plaintiff the amount of five promissory notes made by him, and the value of eighteen and one-half acres of plowing which it is alleged he agreed, but failed, to do. One of the notes is for two hundred and forty dollars, and was given as rent for land which the intervener leased to the plaintiff for the season of *6131893. Another of the notes is for one hundred and ten dollars, another for two hundred and forty dollars, and another for ten dollars. These three notes were secured by a chattel mortgage on the interest of the plaintiff in the crops grown under the lease, and the first two were also secured by a mortgage on stock and other personal property. The fifth note was for thirty dollars, and was secured by a chattel mortgage on two hundred bushels of corn grown under the lease. The intervener demands judgment against the ‍‌​​‌​​‌‌​‌‌‌​​​‌​‌‌‌​‌​‌​​​​‌‌‌​​‌​‌​​​​‌​‌‌‌‌​​‌​​​‌​‌‌​​‌​‌‌​​​​​‌‌‌‌‌​​‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌​​‍plaintiff for the amount of the claims mentioned, and asks that a landlord’s lien be established against the corn grown under the lease, including that sold to the defendants, and that his three mortgages be foreclosed. In answer to the petition of intervention, the plaintiff pleads various defenses, which need not be set out at length. The jury found the sum of two hundred and eighteen dollars and thirty-one cents due to the intervener, that certain of the notes in suit were usurious, and that the school fund was entitled to recover’ of the plaintiff the sum of eighty dollars and thirty-six cents. Judgment was rendered accordingly. This is the second submission of this cause in this court. An opinion was filed on the first submission, a re-hearing was ordered, and the cause is again submitted for our consideration. Our examination of the case has been made unnecessarily difficult by the presentation in argument of a large number of - trivial questions which only tended to obscure those which were controlling.

1 I. The appellee has asked to have the evidence stricken from the record on the ground that the official shorthand reporter’s transcript of the shorthand notes was not duly authenticated. Amendments to the abstract show a sufficient bill of exceptions properly filed, and that the transíalo n of the shorthand notes was duly certified within *614the time required for the filing of such translations in actions at law. The request to strike the evidence will, therefore, be denied.

2 II. After the issues were settled and before the jury was called, the intervener filed a motion to transfer the cause to the equity docket for trial. The motion was overruled. It was renewed after the trial had been commenced, and was again overruled. We are of the opinion that.these rulings were correct. The action was properly commenced at law, and the relief asked by the plaintiff was within ‍‌​​‌​​‌‌​‌‌‌​​​‌​‌‌‌​‌​‌​​​​‌‌‌​​‌​‌​​​​‌​‌‌‌‌​​‌​​​‌​‌‌​​‌​‌‌​​​​​‌‌‌‌‌​​‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌​​‍the jurisdiction of a court of law. Only a part of the relief asked by the intervener was of an equitable character, and, had he been a defendant, he would not have been entitled to have the entire cause transferred to the equity docket. To have transferred a part of the issues to that docket would have caused delay in the trial, and an intervener has no right to a change in the proceedings which would cause delay.

3 ’ III. The plaintiff and intervener had a conversation in the Castaña Bank in regard to the amount the former was owing the latter, and several witnesses testified in regard to what was then said by the plaintiff. ■ The court withdrew that conversation from the consideration of the jury, on the ground that it was in the nature of an offer to compromise. But the intervener claims that it included admissions of facts made by the plaintiff which should have been considered by the jury, and the examination of the case which we have now made leads.us to conclude that the claim is well founded. The plaintiff testified in regard to an attempted settlement with, the intervener as follows: “Dr. Ordway and I went to the bank, and I told him there that I would give him $414.96. I told him that was more than I owed him, but that I would give him that much to settle yrith him.” That ¡statement, considered alone, was *615merely an offer of compromise, and other statements made by the plaintiff were of the same character. But the intervener testified that the plaintiff said, in regard to paying the amount he owed: “I will give $450 or $460,” without indicating that it was an offer of compromise; also, that “he told me that the four hundred and sixty or ninety dollars — something, whatever it was • — was all that he ‍‌​​‌​​‌‌​‌‌‌​​​‌​‌‌‌​‌​‌​​​​‌‌‌​​‌​‌​​​​‌​‌‌‌‌​​‌​​​‌​‌‌​​‌​‌‌​​​​​‌‌‌‌‌​​‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌​​‍owed me. He did not tell me he offered it to me to avoid suit.” A bystander who heard the conversation, says the plaintiff stated that he had had his indebtedness computed, and found that he owed Ordway “four hundred and some dollars. He said he would make a tender of it, and that is all he could get, or-all he owed him.” The witness added: “I forget just the language.” Other statements were made during the conversation which tended to show that the plaintiff was owing Ordway more than four hundred dollars. Some of the statements we have set out are in the nature of unqualified admissions of indebtedness to the amount of more than the sum last named, and were not mere offers to compromise. We conclude, therefore, that they were competent evidence for the intervener, and that the court erred in excluding them. Bayliss v. Murray, 69 Iowa, 292 (28 N. W. Rep. 604); 1 Greenleaf, Ev., section 192. The truth involved in the conflict between the testimony of the plaintiff, to the effect that his statements were merely offers to compromise, and that on the part of the intervener, that they were’ unqualified admissions of indebtedness to an amount stated, was for the jury to determine.

4 *6165 *615IY. The notes for one hundred and ten dollars and two hundred and forty dollars, secured by chattel mortgage, were given for borrowed money, and, as originally made, were usurious. On the back of the note for two hundred and forty dollars is the following indorsement: “Received the interest in full, as payment for all usurious interest: *616on this and another mote for $110.00, and interest in full until Dec. 2B, 1891, and extend time of payment till December 2B, 1891. The above is in full payment for all usurious interest on this and another note. W. W. Ordway. J. W. Kassing.” The intervener testifies, in harmony with the indorsement, ‍‌​​‌​​‌‌​‌‌‌​​​‌​‌‌‌​‌​‌​​​​‌‌‌​​‌​‌​​​​‌​‌‌‌‌​​‌​​​‌​‌‌​​‌​‌‌​​​​​‌‌‌‌‌​​‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌​​‍that it was made, and credit given, to purge the two notes of all usury. We do not understand that the plaintiff denies signing the indorsement, nor that it was made for the purpose stated by the intervener. A usurious contract may be purged of usury by the parties to it, and, if the claims of the intervener in regard to the two notes last described are true, they are not now usurious. Bank v. Eyre, 52 Iowa, 117 (2 N. W. Rep. 995). That theory of the case should have been presented by the charge to the jury. The two notes, by their terms, bore interest at the rate of ten per cent, per annum, and, if purged of usury, would bear that rate of interest until paid, for the reason that, when they were made, the law of this state permitted the making of contracts for that rate of interest, and the notes were not affected by the statute of the Twenty-third General Assembly, enacted in the year 1890, which made contracts for a rate of interest higher than eight^per cent, usurious. The court instructed the jury in regard to the change in the statute respecting usury, but in such terms that the jury may have inferred that the notes made before the change, which provided for the payment of interest at the rate of ten per cent, before the change, would only bear interest at the rate of eight per cent, after the change took effect. To that extent, the charge was erroneous.

*6176 *616V. It is claimed by the intervener that there is no usury in either the thirty dollar or ten dollar note. Whether that is true depends upon the facts which the evidence establishes, The xiote first mentioned *617was given for an agricultural implement known as a “lister,” which was purchased for the plaintiff. The intervener claims, in effect, that he purchased it for twenty-five ‍‌​​‌​​‌‌​‌‌‌​​​‌​‌‌‌​‌​‌​​​​‌‌‌​​‌​‌​​​​‌​‌‌‌‌​​‌​​​‌​‌‌​​‌​‌‌​​​​​‌‌‌‌‌​​‌​​​‌‌​‌‌​​‌‌​​‌​‌​‌​​‍dollars, and sold it to the plaintiff for thirty dollars, taking the note in payment. If that was true, the note was not usurious; but, if the transaction on the part of the intervener was a mere loan of money to the plaintiff, it was usurious. The ten dollar note was given, for an extension of time on money due the intervener, and whether it was usurious depends upon the rate of interest which the debts extended bore; and that is a proper matter to be submitted to a jury.

YI. We have considered all the questions in the case which, in view of the conclusions reached, appear to be of sufficient importance to make their determination necessary on this appeal. Numerous other questions are referred to in argument, but they depend upon methods of trial and evidence given, and are not likely to arise on another trial. For the errors pointed out, the judgment of the district‘courtis reversed.