Cutler v. . Wright

The defence of usury presents, I think, no serious embarrassment to the plaintiff's recovering. The note upon which this action is brought is dated and made payable in Florida; and, although it was actually made and executed in this State, it is to be regarded as a Florida contract. In Curtis v. Leavitt (15 N.Y., 88), it is said, the authorities do not leave this question in doubt. (See authorities there cited. See, also,S.C., 30, 296.) It is not set up in the answer that, by the laws of Florida, this contract was usurious, and therefore void. The allegation that it was usurious and void by the laws of the State of New York, was an immaterial averment, and in no sense tended to show the usurious character of the transaction by the laws of Florida. If the defendant intended to avail himself of that defence, it is well settled, he must have pleaded it. Not having done so, we are to assume that, by the laws of Florida, the contract and rate of interest reserved in the note are unobjectionable. But, if this were not so, I think there can be no question that we are at liberty to look into the statutes of the State of Florida, to ascertain from them the rate of interest allowed on contracts to be performed in that State. The 426th section of the Code declares that printed copies of volumes of statutes, code or other written law, enacted by any other State, purporting to have been published by the authority thereof, shall be admitted by the courts and officers of this State, on all occasions, as presumptive evidence of such laws. It is provided, by the Revised Statutes of this State (1 R.S., p. 165, § 17), that the State library shall be the place of deposit of the laws of the several States. On examination, we find there the laws of the State of Florida, purporting to have been published by the authority thereof. We are commanded, by the legislature of this State, to admit such volumes, on all occasions, as presumptive evidence of the laws of that State. I think it clear, therefore, that it was competent for the plaintiff's counsel, on the argument of this cause in this court, to refer to such volume, so purporting to be printed and published by the authority of the State of Florida, as evidence of the *Page 475 laws of that State, without any further or other proof in relation thereto. And this provision of our statute obviates the necessity of proving, on the trial or hearing of the cause, the statutes of the other States of this Union, and thus unnecessarily incumbering the cases with setting them out as evidence in hæc verba. They may be cited and referred to on all occasions in like manner as the statutes of this State; and, I think, the case shows that this was assumed on the trial and on the argument of this case in the Supreme Court. By reference to the volume of statutes of Florida above referred to, we find, on page 234, the statute of that State regulating the interest of money. Section 1 declares that it shall not be lawful, upon any loan of money, c., to take, directly or indirectly, above the rate of eight dollars for the loan of one hundred dollars for one year. In case a higher or greater rate of interest is received or taken than is by that act allowed, the person taking the same loses or forfeits only the amount of said interest. We thus see that the rate of interest reserved by the note in suit in this action is such as is allowed by the laws of Florida; and this, as before shown, being a Florida contract, the defence on this ground is not sustained. But there is another view of this branch of the case which is equally controlling, if the conclusions at which I have arrived as to the effect of the demurrer upon the defence of the statute of limitations are found to be sound and well sustained. In reply to the defendant's answer setting up the defence of usury, the plaintiff, in his reply, avers and states that the said note and contract were made in the city of Apalachicola, in the State of Florida, and that, by the laws of that State, eight per cent was the legal rate of interest at the time of making said note. To this reply the defendant demurred, thus admitting the truth of the matters thus alleged, and on this demurrer judgment was rendered in favor of the plaintiff. Such judgment was unappealed from, and remains of record unreversed. If it has the effect contended for by the plaintiff's counsel, and which will be presently considered, then the allegations of the reply are to be taken as established, and there was, consequently, *Page 476 no usury or illegality in the reservation of eight per cent in this note; and the defence must, on this ground, also fail. We come now to the consideration of the second ground of defence — the statute of limitations. The defendant, in his answer, set up this as one of the grounds of his defence. The provisions of the Code applicable to the questions presented for consideration, at the time this answer was interposed, will be briefly adverted to. By section 153, it was provided that, when the answer contained new matter constituting a defence, the plaintiff might, within twenty days, reply to such new matter, specifically denying the same, or might allege any new matter not inconsistent with the complaint, constituting a defence to such new matter in the answer. The plaintiff, therefore, in this case, set up, in reply to the new matter of defence contained in the answer, the absences of the defendant Wright from this State, at and for the periods before mentioned. This new matter was not inconsistent with anything set out in the complaint, but was strictly a defence to the new matter contained in the answer. It furnished a complete and perfect reply to such defence, if the plaintiff could avail himself of the successive absences of the defendant. That question will be hereafter considered. By the law of this State, the action upon this note was required to be commenced within six years after its maturity, or after the cause of action accrued. The note matured on the 4th day of May, 1844, and the plaintiff's cause of action thereon then accrued. The provisions of the Revised Statutes, in reference to which the reply in this action was framed, and on which the questions raised by the demurrer depend, are as follows: "If, at the time when any cause of action specified in this article shall accrue against any person, he shall be out of this State, such action may be commenced within the times herein respectively limited after the return of such person into this State; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement *Page 477 of such action." (2 R.S., p. 297, § 27.) The questions presented in this case arise upon the second clause of the section above quoted; for it is not averred that the defendant was out of this State at the time the note became due, and when the cause of action accrued. Assuming, for the present, that the facts set up in the reply are legitimately before us for our consideration, and are to be deemed as established, it is alleged, on the part of the defendant, that they cannot avail the plaintiff, for two reasons: First. That this branch of the section only applies to, and authorizes the deduction of, the first absence, and that the successive absences cannot be aggregated and deducted. Second. The reply does not aver any absence from this State of the defendant Dardin, and that, to bring the case within the statute, the absence of both the joint debtors should appear. The first objection has been disposed of by this court in the case ofCole v. Jessup (10 N.Y., 96). It was there held that the successive absences could be accumulated, and the aggregate deducted, under the latter branch of section 27, in cases to which that branch of the section applies. In support of the second objection, already stated, the counsel for the appellant relies upon the case of Brown v. Delafield (1 Denio, 447). This case was distinctly overruled by this court in the case of Denny v. Smith (18 N.Y., 567), and a contrary rule there enunciated. It was, that the absence of one joint debtor from this State suspends the running of the statute of limitations against him, although his co-debtor has remained within the State. These two cases in this court dispose of these grounds of objection on the behalf of the defendant. We now recur to the only remaining point to be considered, whether the facts set up in reply as matter of defence to the defendant's new matter of defence, contained in his answer, are before us for consideration. The solution of this question depends upon the effect to be given to the demurrer interposed to the plaintiff's reply and the unreversed judgment thereon adverse to the defendant. Section 155 of the Code provides *Page 478 that, if a reply of the plaintiff to any defence set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof. By section 168 of the Code, as it stood in 1851, every material allegation of new matter in the answer, not specifically controverted by the reply, shall, for the purposes of the action, be taken as true. But the allegation of new matter in a reply shall not, in any respect, conclude the defendant, who may, on the trial, countervail it by proofs, either in direct denial or by way of avoidance. When, therefore, new matter was set up in a reply, under section 153, the defendant had two ways to meet it. First, if he deemed it insufficient to avoid the defence interposed by him, he could demur thereto, as authorized by section 155; and if he wished to controvert the facts so set up, he was not concluded by them on the trial, but the plaintiff would be left to prove them, and the defendant would then be at liberty to countervail them by proofs either in direct denial or by way of avoidance. If he elected to admit the facts stated in the reply, and claimed that they were insufficient in law to repel the defence interposed by him, the means of doing that were provided by section 155. If he desired to put the plaintiff to proof of the new matter set up in the reply, and reserve to himself the right to countervail it by proofs, either in direct denial or by way of avoidance, resort would be had to the modus operandi pointed out in section 168. The framers of the Code certainly never intended to permit a defendant to experiment with the court, and after he had obtained its judgment upon an alleged state of facts that they constituted no defence, to give him the opportunity of contesting the existence of facts which he had deliberately admitted, unless he complied with such terms as the court might impose on granting such permission. The defendant in this case elected to rely upon the rights secured to him by section 155, and interposed a demurrer. It is well settled that a demurrer admits the facts pleaded, and merely refers the question of their legal sufficiency to the decision of the court. (1 Chit. Pl., 700.) After judgment passed for the plaintiff on the demurrer, no further issue of *Page 479 fact remained to be tried as to the matters set up in the pleading demurred to. If there had been no issue of fact raised by the defendant's answer, the plaintiff would have been entitled, under sections 269 and 246, to enter judgment against the defendant as upon his failure to answer. But, in this case, issues of fact were made by the answer, and, therefore, final judgment could not be entered until those were disposed of. They have been tried by a jury and found in favor of the plaintiff, and he was then, and not till then, entitled to judgment on the whole record. On the trial of these issues of fact, the plaintiff was not called upon to prove those matters which the defendant had admitted by his demurrer. By the judgment on it, they stood on the record found in favor of the plaintiff. They established that the aggregate absences of the defendant, deducted from the time the cause of action accrued to that of the commencement of this suit, took this case entirely without the operation of the statute. Excluding those absences from the computation of time, much less than six years elapsed from the maturity of the note to the commencement of this action. This ground of defence, therefore, is not maintained. It also follows, from these views, that the admitted payment by the defendant of the sum of $300 on account of the note, on the 9th of February, 1848, as averred in the answer and admitted in the reply, takes the note out of the operation of the statute. The answer avers the payment of this sum on the note, and claims a credit therefor. The reply admits the payment and concedes the credit, and avers it was made February 9, 1848. The demurrer admits the payment on that day; and we think this fact conclusively disposes of the defence of the statute of limitations. It follows, if these views are correct, that the judgment appealed from should be affirmed, with costs.