33 Conn. 570 | Conn. | 1866
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 pur
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
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.