43 Minn. 307 | Minn. | 1890
In their answer the defendants justified the taking and conversion complained of under a chattel mortgage executed by plaintiff to defendant Willoughby, and alleged facts authorizing them, under the “insecurity” clause in the mortgage, to take the property before the maturity of the debt secured. The plaintiff replied, denying the existence of any such facts, and alleging that the mortgage was usurious. Aside from the measure of damages or value of the property, the only issues on the trial wexe, first, whether the mortgage was usurious; and, if not, second, whether facts existed justifying the mortgagee in taking the property before the maturity of the debt.
The court very properly instructed- the jury that, if they found the first in the affiimative, they need go no further, but must find a verdict in favor of plaintiff for the full value of the property; but, if they found both in the negative, they should find in favor of plaintiff only for the excess of the value of the property over and above the amount, due on the mortgage; and, if they found the first in the negative and the second in the affirmative, they must find for the defendants. It-is evident from the amount of the verdict, viewed in the light of the evidence, that the jury found the mortgage usurious, and hence-never reached the second question. We shall first consider the assignments .of- error affecting the question of usury.
1. One -is that the verdict was not justified by the evidence. On the question of usury, the only direct evidence was that of plaintiff' and of Bates, the agent of defendant Willoughby, who transacted the-business for him. The two flatly contradicted each other. Plaintiff swore positively that the amount of the mortgage, $7,025, was made-up of $3,500, money loaned; $3,125, the agreed price of some cattle-which Bates compelled him to buy of Willoughby as a condition of getting the loan; and $400 bonus over and above 10 per cent, interest, which the mortgage drew. Bates, on the other hand, swore with equal positiveness that the agreed price of the cattle was $3,525, and that no bonus whatever was exacted. So far as we can judge of it. on paper, plaintiff’s testimony seems the most circumstantial and.
2. Another assignment of error is the refusal of the court to instruct the jury, according to defendants’ eleventh and twelfth requests, to the effect that, in order to charge the defendant Willoughby, plaintiff must have shown not only that his agent, Bates,
3. The tenth request, to instruct the jury as to the weight to be given to.the .written contract, was properly refused, for two reasons: First, it was inapplicable and misleading in a case where the very subject of inquiry was.whether the contract was invalid because of
4. The objection to oral evidence to show that the sum of $3,525 was not the actual price for the cattle, but included $400 bonus, was not well founded. The rule against varying or contradicting a written contract by oral evidence has no application to such a case. Fraud, illegality, or any other matter which, if proved, would affect the validity of a writing, may always be proved by oral evidence.
This covers all assignments of error bearing upon the issue of usury which are entitled to any special consideration. Those relating to the value of the property are entirely without merit. They relate only to the competency of the witnesses Briggs and Sloan, both of whom were shown to have sufficient knowledge of values of such property to justify the court in admitting their testimony. The rules which should govern us in reviewing the action of the trial court in passing upon the competency of a proposed expert witness are stated in Stevens v. City of Minneapolis, 42 Minn. 136, (43 N. W. Rep. 842.)
We have not discussed the assignments of error affecting merely the issue as to whether, if the mortgage had been valid, the defendant would have been justified in taking it before the maturity of the debt, because we deem them immaterial, the jury never having reached that question. We may remark, however, that we have examined them, and find no error in any of the rulings of the court complained of.
Order affirmed.
Note. A motion for reargument of this case was denied June 10,1890.