15 Ind. 257 | Ind. | 1860
Ohristman sued Penee upon two promissory notes, executed by the defendant to the plaintiff, one for $944, dated December 6, 1858, the other for $333 and 73 cents, dated May 6, 1858.
The defendant answered that the first mentioned note was-usurious, in this; that it was given in consideration of a note previously given by the defendant to one George O. Tyler, and by the latter transferred to the plaintiff without indorsement, for the sum of $800, which last mentioned note, as set out, was made payable on June 6, 1857; and it is averred that $144 of the note sued on was given for usurious interest.
The other note sued on is also alleged to have been usurious, in this; that it was given in consideration of a note previously given by the defendant to the plaintiff for $280 and 33 cents, which last mentioned note was dated May 6, 1857, and payable one day after date, and that the excess of the note sued on over that for which it was given, was usurious. Replications in denial. Trial by the Court.’ Einding and judgment for the plaintiff for $1169 and 14 cents, and judgment for the defendant for costs. Both parties moved for a new trial; the defendant, because the Court overruled a motion to continue the trial of the cause, and refused leave to amend his affidavit made for that purpose; and the plaintiff, because the finding was not sustained by the evidence.
The defendant below appeals, and assigns as error, the ruling of the Court on his motion for a continuance, and in refusing leave to amend his affidavit. He also assigns error in relation to the finding of the- Court, but this can not be noticed, as it was not made a ground of his motion for a new trial.
The continuance was asked by the defendant in order to procure the testimony of one William Lord¡ and the affidavit
The Court did not err in refusing leave to amend the affidavit, having passed upon the .motion. Shattuck v. Myers, 13 Ind. 46.
This disposes of the errors assigned by the appellant. We find no cause to reverse the' judgment at his instance.
The appellee assigns, by way of cross error, the refusal of the Court to grant a new trial on his application. The finding of the Court we deem to be right, on the supposition that both notes sued upon were usurious. There is no pretence that the original notes, for which those in suit were given, were tainted with usury, and the amount found by the Court is just the sum that those notes, with the interest thereou, amounted to when they were given up, and the notes sued upon given. The evidence is clear enough that the small note was usurious, but in relation to the larger note, we are of opinion that the finding is not sustained by the evidence..
The plaintiff, and Tyler, the payee of the large note, are the only witnesses introduced, and in their testimony there is no material discrepancy; there are no conflicting statements to reconcile, nor any determination required as to preponderance of evidence. They testify to the following state of facts: Tyler held the note against Pence for $800, and Pence requested the plaintiff to settle the same for him, telling him that he had promised to allow Tyler 12 per cent, interest on it. Pence then told Tyler that he had made arrangements with the plaintiff to pay the note, and Tyler handed the note to the plaintiff. The interest was computed on it at 12 per cent., making the $9M, for which the plaintiff accounted to Tyler, and the note in suit was given to the plaintiff for that amount. Now, if this was an honest, fair, transaction, and not a device to evade the usury laws, there can he no doubt of the plaintiff’s right to recover the full amount of the note sued upon. Although Pence was under no legal obligation to pay Tyler the 12 per centt, yet if he procured the plaintiff to pay it, he can not avoid the note given to the plaintiff in consideration of such payment. This proposition is fully sustained by the case of Wright v. Hughes, 13 Ind. 109, and authorities there cited.
There is nothing in the evidence which we think impugns . the fairness of the transaction, or shows that it was resorted . to by the plaintiff for the -purpose of corruptly receiving usurious interest. We are of opinion, therefore, 'that the plaintiff’s motion for a new trial should have been granted.
The judgment below is reversed upon the cross errors assigned by the appellee, at the costs of the appellant, and the cause remanded for a new trial.