53 Iowa 396 | Iowa | 1880
I. The defense pleaded to the action is usury. It is shown in the answer that the notes sued upon were given for the balance due upon a judgment against defendant Gephart, in favor of plaintiff, rendered upon a promissory note; that upon this note before the judgment was rendered, and upon the judgment, usurious interest was contracted for and paid, and that a part of such usury was paid by the execution of promissory notes upon which judgments were rendered that were afterward paid by defendant.
The evidence tended to prove the allegations of the answer. It was further shown that defendant executed another note to plaintiff for $220, which was also subject to an agreement for unlawful interest. This note was fully paid at the time the notes in suit were executed. Certain notes for the usurious interest were executed, and. whether they covered the usury in the last mentioned note is a matter of controversy. Upon this point the evidence is not clear, and the jury could well have found either way.
In the case before us, it was a question of fact whether certain payments of usurious interest were made upon the judgment, or the note for $220. As we have stated, the jury could well have found either way. We think that the jury may have understood the third instruction to be in conflict with this rule. It announces, in general terms, that the defendants are entitled in this action to credit for the sums set up in the answer, if the jury should find they were paid upon a contract for unlawful interest. The language of the instruction ought to have been so qualified as to limit its application to usury paid upon the notes in suit.
For the errors pointed out, the judgment of the District Court is
Reversed.