Rose v. Phillips

| Conn. | Oct 15, 1866

Carpenter, J.

The defendant, in 1851, gave his note to Elisha Rose, made and payable in California, for the sum of fifty dollars, on interest, but without expressing the rate per cent. The law of that state permits parties to contract in writing for any rate per cent., and the rate so agreed upon will be enforced by the courts. But in the absence of any such agreement ten per cent, per annum only can be collected.

In this case the parties agreed, whether in writing or not does not appear, that the interest should be thirty-six per cent, per annum. The defendant subsequently removed to this state, and at his request this note was sent to the plaintiff for collection. He voluntarily computed the interest at thirty-six per cent., paid the principal in cash, and gave his note payable to the plaintiff for the interest, which she accepted. The note so given is the note in suit.

The record presents but two questions for the determination of this court. 1. Was parol evidence admissible to prove the agreement relating to interest? 2. Was the note in suit usurious ?

1. The objection to this evidence is based upon the principle that parol evidence is not admissible to contradict or vary a written instrument. If the court below had been called upon to construe the original note, and to modify or vary that construction by the parol agreement for the purpose of enforcing payment of the note as thus modified, the objection would be well taken. But the evidence objected to was offered for no such purpose. The defendant settled and took up the note in question, and in doing so performed his parol agreement relating to it. After having proved that the defendant voluntarily computed the interest on that note at thirty-six per cent, per annum, the plaintiff was permitted to prove that he did so in pursuance of a prior parol agreement to that effect. This evidence was certainly admissible as tending to disprove the allegation in the defendant’s notice that the note in suit was given for the amount therein named by mistake. But aside from this, we think the evidence was admissible. If the agreement was not a part of tire res gestae, strictly speaking, yet it was so intimately connected with the note in suit, entering into and affecting the consideration thereof, making clear its origin and nature, that we think,tlie court below properly permitted it to be proved ; especially as the agreement was not illegal and the defendant had waived the only objection to its enforcement.

2. The defense of usury cannot prevail. The first note, made and executed and in contemplation of the parties to be paid in California, could not have been usurious, because usury was unknown to the laws of that state. The note in suit it is true was made and is payable in this state, and if tainted with usury the plaintiff can only recover the real consideration without interest. It is hardly necessary to say that usury must be proved. No amount of mere suspicion or conjecture will be sufficient. Now in this case not only is this defense not proved, but all suspicion even seems to be removed by the finding of the court, which shows clearly and fully what the consideration was. From the facts found, in connection with the lapse of time since the note was given, the presumption is that the plaintiff received this note as so much money, and accounted to her brother for it accordingly. There is nothing in the case to show that she took any unconscionable advantage of the defendant, or that the real consideration of the note, so far as she was concerned, was any less than the sum therein named. . Under these circumstances argument seems to be unnecessary.

A new trial must be denied.

In this opinion the other judges concurred, except Park, J"., who having tried the case in the court below did not sit.