Carder v. Wallace

Gill, J. This case turns entirely upon matters of fact, or rather upon the conclusions of the master in chancery and the court below in its judgments on the testimony submitted. The master in chancery to whom the case was referred, reported his conclusions upon the law and the facts. In this case exceptions were filed to the report of the master in chancery, and the court below, upon full presentation of the matter, sustained the master’s conclusions as to the facts, and confirmed his report, and announced its judgment upon such report. Plea of usuryaffirmative Defense. It seems to be well established as a principle that this court will not disturb the judgment of the trial court where the evidence is conflicting. Martin Browne Co. vs Morris, 1 Ind. T. 495, (42 S. W. 423); Malting Co. vs Schroeder, 67 Ill. App. 560; Hayes vs Hammond, 162 Ill. 133, 44 N. E. 422; Dean vs Emerson, 102 Mass. 480; 14 Am. & Eng. Enc. Law (1st Ed.) 940, and notes; Missouri Pac. R. Co. vs. Texas & P. Ry. Co. (C. C.) 33 Fed. 803. An examination of the evidence in this case not only discloses conflict therein, but further that the defendant failed wholly to establish his claim of usury by a preponderance of the testimony. The plea of usury is affirmative in its 'nature,— one which ohe defendant undertakes to establish and must establish by a preponderance of the evidence. McEwin vs Humphrey, 1 Ind.T. 553, (45 S.W. 114;) Bayliss vs Cockcroft 81 N. Y. 363; Webb, Usury, § § 416 — 418; 27 Am. & Eng. Enc. Law, 1046, and note 1, and cases cited; Berdan vs Trustees, 47 N. J. Eq. 8, 21 Atl. 40; McAleese vs Goodwin, 511 69 Fed. 759, 16 C. C. A. 387. In this case, where the burden is upon the defendant, he not only fails by a preponderance of the testimony to show that the note sued on is tainted with usury, but was unable to state clearly the amounts of money going to make up the $1,700 note or the $2,500 note; nor does it appear clearly by his testimony that he knew just what amounts he had paid the plaintiff by way of interest, or otherwise, on the notes, or how he had repaid the plaintiff various small sums of money which appear in the testimony to have been loaned him from time to time by the plaintiff. Inasmuch as the master in chancery has reported fully in this case, and that report has been confirmed by the court below, and in view of the fact that this ordinarily is as conclusive upon the parties as the verdict of a jury in an action at law, and the evidence in the case is, to say the least, conflicting, we are of the opinion that the judgment of the court below was right and ought to stand, and the same is therefore affirmed. Clayton, C. J., and Thomas and Townsend, JJ., concur.