9 Iowa 376 | Iowa | 1859
The action was against all'the makers of a joint and several promissory note, and an attachment was asked and obtained against the property of a part of them. The affidavit sets out that Shinn, Boynton & Co. are insolvent, and that the other defendants, Coopers & Clarke, are non residents of the State. The question is, had the plaintiffs the right to an
Judgment by default was taken against Shinn, Boynton & Co., at the first term after the commencement of the action, and the cause continued as to the other defendants. After this, the attachment issued, and one ground for the motion to dissolve, was, that the liability of Coopers & Clarke upon the note, was merged in that judgment, and that upon the note they were no longer liable, and no proceeding could be predicated upon such liability against them. The same question is made in so much of appellant’s argument as relates to plaintiff’s demurrer to portions of the answer setting, up this same matter in bar of the action.
The law is, that persons jointly and severally liable on the same instrument, may all, or any part of them, be- sued at once; that judgment may be rendered for, or against, one or more of several plaintiffs or defendants; and that this may be done against one or more before the case is ripe for decision as to all, when such a* course will not unjustly prejudice the interests of other parties. Code, sections 1682, 1815-16. We are clearly of the opinion that, under these provisions of the Code, judgment may be rendered against one of the makers of a joint and several promissory note; that the caiise may be continued as to the others, and that such judgment will not bar the plaintiff’s right to recover against the other parties when the cause is ripe for disposi
It is also claimed that the court erred in refusing to set aside the levy of the attachment as returned by the sheriff. The point made and now presented' is, that the property attached was not appraised by the sheriff. Our law does not require this in order to make a good levy or service. Section 1860 of the Code prescribes the manner of attaching; but an appraisement is not one of the requisites, and then section 1877, in providing for an appraisement in a given state of case, negatives, very clearly, the conclusion that it is necessary in every instance or in any instance, as a part of the mode of attachment. And this view is very much strengthened by the language of section 1880. This clearly contemplates cases in which there is no appraisment, and others where there may be. The latter cases are those where a delivery bond is given as provided in section 1876.
It is next assigned that the court erred in refusing the defendant’s counsel the right to open and close the case before the jury. This is a matter of practice, resting so peculiarly in the discretion of the court below, that we should not interfere with its exercise, unless there was a much greater abuse of it than there seems to have been in this instance.
Defendants plead usury and set up that at the date of the promissory note sued on, Coopers & Co. were indebted to plaintiffs in the sum of $7000.35, as evidenced by eleven promissory notes, copies of which are given in the answer; that these notes were endorsed by Coopers & Clarke ; that Shinn, Boynton & Co. assumed the the payment of these notes, and were liable to pay the same; that on the 14th of March, 1857, (the date of the note sued on,) they came to a settlement as to the amount due on said eleven notes, as also a bank account owing by Shinn, Boynton & Co. to plaintiffs, and that there was then found due as principal $7204.07,
On the trial, one of the defendants was offered as a witness to sustain the plea of usury, and asked this question: “State whether or not the defendants, Shinn, Boynton & Co., and the said Coopers & Clark, entered into an agreement, whereby the said Shinn, Boynton & Co. assumed the payment of the said eleven promissory notes (referring to thoge made by Coopers & Co., and set out in the answer); if so, state what that agreement was.” To this question, plaintiffs objected, and thereupon defendants’ counsel stated that their object was to show the existence of the agreement between the defendants, and to show by said witness that plaintiffs assent to the same, and that they regarded and treated the said Shinn, Boynton & Co. as principals. • The objection was sustained, the court holding that the witness was competent to prove the usurious agreement, but not that referred to in the interrogatory.
The question here made is, for this case, of no practical importance. Eor, granting that the testimony was competent, defendants were not prejudiced. The bill of exceptions recites that other witnesses were permitted to, and did testify to the same matter. Indeed the record shows that the agreement was but little, if any, controverted, throughout the entire case; and though not established, we cannot see how it was material if the usurious contract was shown, and to prove this there seems to have been no objection to the
The defendants asked the following instructions: “ First, If the jury believe from the' evidence, that the $8000 note mentioned in the answer, has been paid, the contract being usurious, the two notes are to be treated as one transaction, and in arriving at the sum due on the note now in suit, the jury will ascertain the sum due on the face of the said eleven notes and bank account; that is the sums for. which said eleven notes were executed, and the amount of the bank account ; that from the aggregate amount of said notes and account, they will deduct the $8000, alleged to have been paid, and also the sums credited on the note now in suit, and that the difference between the two sums, will be the true amount of the principal sum now due on the note now in suit. Second, That the jury have nothing to do with reference to the amount to be rendered as a judgment against the defendants for the forfeited interest; that being a matter for the court, after the finding of the verdict, on the plea of usury.”
These instructions were refused and the following given in their stead:
“ The jury cannot deduct from the note now in suit, the usurious interest included in the other note which had been paid; that the word contract, as used in the statute, regulating interest on money, referred to the contract on which the suit was brought, to-wit, the note, and not the contract or agreement under which the two notes were made; that the jury, in arriving at the unlawful interest in this note, must ascertain the unlawful interest in both, and make this one bear its just proportion of said unlawful interest; that they would find the amount of forfeited interest (if the contract was usurious) to the school fund, for which judgment was to be entered against defendants.” To the giving and refusal of these instructions, defendants excepted, and this is the next question presented for our consideration.
Now if our law declared the contract void in toto, by reason of the taint of usury, the rule is, that such contract if made by two instruments, one promising to pay the principal, with lawful interest, and the other promising to pay the usurious interest as principal, both instruments are void. They are void, because, as the authorities hold, both together form one contract. 2 Par. Contr. 390 and note g. And in some cases it is held that if there be a note valid in itself, and a separate oral promise to pay usurious interest, both are void. Par. supra and note h; Warren v. Crabtree, 1 Greenl. 171: and contra, Butterfield v. Kidder, 8 Pick. 512. “If,” says Mr. Parsons, “the design of the whole transaction, and the inducement to it, are to lend money on usurious interest, the taint of usury, (according to the prevailing rule,) effects the whole and every part of the contract, and no one portion thereof, although in form, an independent contract, is made valid by the fact that taken by itself, it is free from objection. The very fraud consists in disguising usury by separating the contract into these parts.” It is true that our law, as we have seen, does not expressly declare the contract
But the argument is that the $3000 note, with its proportion of illegal interest has been paid; and such interest cannot be recovered back. Treated as an action on the part of defendants to recover the illegal interest paid, this position is correct. But is it right to thus treat it ?
Courts of justice will always, when appealed to, if in their legitimate power, prevent the perpetration of -wrong or fraud. If a wrong has been meditated and partly or entirely accomplished, a remedy should-be furnished as far as consistent with the rules and practice of courts. When the contract under which the fraud was perpetrated, and which has been in part performed, is brought before them by the immediate parties to it, for further enforcement, reason, good morals as well as law, dictate that as far as possible, the wrong should be made right; and that the means received on account of the fraud should be returned. And if the guilty party seeks the aid of a court for the further enforcement of his contract, he is in no position to complain, if compelled to account for his ill-gotten gains, received upon such fraudulent and illegal contract. Not only so, but it shall always be intended that if money is paid, it shall be applied to the discharge of that which the debtor was legally owing, and not upon that -which (so to speak) he was owing illegally.
And therefore treating the contract in this case as entire, and the notes as the evidence or fruit of the contract, if
But finally, on this part of the case, this contest is triple, there are three parties to it. The State, as the trustee for the school fund, has a right to the forfeited interest, and it is the duty of the court to render judgment therefor, when ascertained, whether the suit is contested by the defendant or not. This interest, it is to be observed, is ten per cent per annum upon the amount of such contract. In a case pending in court, based upon such contract, the school fund is entitled to this forfeiture, as much as the plaintiff is to his principal sum, or the defendant to be released entirely from any amount over and above the principal and ten per cent interest. If, then, the defendant has paid a portion of the debt, whether upon the note in suit, or another instrument in part the evidence of the contract, is the State to recover the forfeited interest upon the principal sum included in the note before the court, or in the language of the
It is further objected, however, structing the jury upon the subject of the forfeited interest, against defendants’ objection, after they had once returned a verdict, and in sending them back to again examine the subject. There was no error in this, certainly, of which the appellants can complain. The verdict, as first returned, required defendants to pay to the school fund about $1100, whereas that returned after the- instruction objected to, was for more than $600 less. The State might complain if there was error in this proceeding, but not the defendants.
But it is est should have been found by the court, and that it is erroneous to submit the assessment of the same to the jury. "We are not aware that any valid objection exists to the course pursued in this instance. It is a question of fact, depending, it may be, upon calculation, after the amount of :the contract is ascertained, and as such may, very appropri
Finally it is urged that the court erred in the rule given to the jury, as to the method of calculating this interest. It seems that the rule adopted, was that recognized in Huner v. Doolittle, 3 G. Greene 76. This rule is that stated by the Chancellor, in Connecticut v. Jackson, 1 John. Ch. 13; and is this: “ When partial payments have been made, such payments are to be applied, in the first place, to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of principal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal, but interest continues upon the former principal until the period when the payments, taken together, exceed the interest due, and then the surplus is to be applied towards discharging the principal, and interest is to be computed on the balance, as aforesaid.” This rule is adopted in Dean v. Williams, 17 Mass. 417; Williams v. Houghtaling, 3 Cowen 87, and is said by Mr. Parsons, in his excellent work upon contracts, (Vol. 2 p. 147) to.' generally prevail. It recommends itself to us as being more reasonable and just than any other method suggested, and we feel justified in saying that it has been generally adopted by the business men of our State. Livingston v. Story, 3 Pet. 471; U. S. v. McLeman, 4 How. 288.
The only question, then, is whether a different rule is to • be adopted where the interest goes to the State, as in this case. And we may premise by saying that if any change is to be made, it would be unfavorable, rather than favorable, to the parties here complaining. The strict, literal language of the act would require the party promising, to pay the ten per cent upon the amount of the contract, and whether this amount is to be determined from the sum loaned or that agreed to be paid, would give him no advantage from payments made.
There was no error, then, in the rule adopted for computing interest. Eor the error in the instructions, however, the case is reversed and remanded.