The opinion of the court was delivered by
Peck, J.
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*632eree under the settlement; but on the. contrary the referee states that he claimed to recover upon the account he submitted, which makes no.reference to the settlement, and contains no item as the result of it. The plaintiff can not present his open account alone, and put his claim exclusively upon it, thereby abandoning or repudiating the settlement, and take the chance of a trial before the referee on that basis, and afterwards in court resort to the settlement to enlarge his recovery. The facts in relation to the settlement apparently came in before the referee incidentally, not as a ground of claim, but as affecting the plaintiff’s right to recover the item of $60 in his account, which was for usurious interest which he had paid the defendant. But independent of this objection to the recovery of the $210.14, it is clear that the plaintiff is not entitled to it. The plaintiff can not, as he claims to do, hold the defendant to the payment of the $58 as the balance agreed upon as due from the defendant, and add to it the $40 he allowed the defendant in the settlement for arrears of usurious interest the defendant then claimed the plaintiff had agreed to pay him on the loan of the $1,000. It cannot be assumed that the defendant would have agreed upon $98 as the balance due instead of the $58, if the plaintiff had refused to allow the $40, and thus upon that assumption enable the plaintiff to recover $98 as upon an account stated, a sum to which the defendant never agreed ; and also to recover back the $60 usurious interest which he paid before the settlement. The plaintiff must bo content with the balance found due by the referee upon the open accounts which he submitted, and upon which he claimed to recover.
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 *633suggested in argument that as to the $40, the settlement was in effect a compromise of a disputed claim, and, therefore, a bar to any action to recover it back. At the time of the settlement, there was some dispute as to the amount of usurious interest which the plaintiff originally agreed to pay, and the plaintiff yielded to the defendant’s claim in that respect, but there was no dispute but that the $40 was for usurious interest, and that it was claimed and allowed as such. The defendant insists that it appears by the finding of the referee, that by the settlement, the $58, if paid, was understood by the parties to settle everything between them ; and that the settlement, should have effect according to the intent of the parties, and, therefore, bar any claim of the plaintiff to recover back either the $40 or the $60, although the $60 was not mentioned or alluded to in the settlement. But there is nothing in the case to show an accord and satisfaction or re-payment of the $60 usury to the plaintiff; and the receiving of usury being unlawful, the plaintiff can recover back what usury he had paid before the settlement, notwitstanding such mutual intent of the parties to the contract at the time of the settlement. In this view of the effect of the settlement the defendant objects to being bound by it. The settlement is to be laid out of the case, and the $40 claim thereby is rendered of no account. The rights of the parties must depend on the open accounts presented by them, and adjusted by the referee. The referee, in arriving at the result on this basis, properly allowed to the plaintiff the item of $60 in his account for usury paid by him to the defendant before the settlement.
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.