47 Vt. 627 | Vt. | 1874
The opinion of the court was delivered by
The referee’s report states that “Ihe plaintiff submitted and claimed to recover upon the account hereto annexed marked Aand that “the defendant submitted and claimed to recover upon the account hereto annexed marked B.” These accounts consist of various items of charge, nearly all of which appear to have accrued prior to the alleged settlement of May 25, 1868, by which settlement the plaintiff claims a balance of fifty-eight dollars was agreed on as due to him, and by which the defendant claimed before the referee nothing was found due to plaintiff. These specifications of the parties on which they based their claims respectively before the referee, neither of them notice the settlement, or make any claim by virtue of it, but are based entirely on the original items, independent, of, and unaffected by, the settlement. The referee upon this basis has adjusted the claims of the parties, and found a balance due the plaintiff $189.-43, including interest. The plaintiff now claims more than this, and upon another basis. He claims the balance of $58 found due him by that settlement, and claims to add to that the $40 which in that settlement he credited the defendant for arrears of usurious interest which the defendant claimed the plaintiff had agreed to pay on the $1,000 which the defendant had theretofore loaned to the plaintiff; and also to recover $60 which he had paid the defendant before that settlement as usurious interest on that loan. The plaintiff claims to recover these two last items on the ground that usurious interest is contrai'y to law, and that his balance of $58 agreed on as due on the settlement, would have been $40 more, if he had not allowed defendant that sum in the settlement, and that the $60 can be recovered by virtue of the statute against usury. On this basis it appears the balance due the plaintiff is $210.14 inclusive of interest. This sum the plaintiff now claims to recover, and such was the judgment of the county court. It does not appear that the plaintiff made any claim before the ref
As the amount which the defendant introduced and claimed to recover before the referee, had no reference to the settlement, the defendant is, in this respect, in the same condition as the plaintiff; yet it is now insisted in his behalf that the balance of $58 found due the plaintiff on the settlement, should be the measure and limit of the plaintiff’s recovery. But if the defendant elects to rely on the settlement, he must take it subject to the right of the plaintiff to recover back, not only the $60 usurious interest, but also the $40 usurious interest which the plaintiff paid him by crediting him that sum in the settlement. It is
Judgment of the county court for the largest sum is reversed, and judgment for the plaintiff for $189.43, with interest since the date of the judgment in the county court.