Jones v. Hake

Radcliff, J. Considering this case as depending upon. the testimony admitted at the trial, I am of opinion that the verdict was clearly against evidence. The note in question was made by Watkins, and indorsed by the persons whose names appear on it, for the accommodation of Watkins alone. No money was paid, or value given, by any of the indorsers. If the transaction be viewed in its true light, it was a contract, made through the agency of Haskiu, between Watkins on the one part, and the person who loaned the money, and took the note as his security, on the other. The lender was in reality, the first holder of the note, for the value given, whatever that may have been. If then we admit no shift or device to evade the statute against usury, aud look through the forms under which the parties intended to cover the loan, it appears to me there can be no doubt but that the'con tract Avas usurious, and the note therefore void.(a) As to the witnesses offered by the plaintiff, I think they were competent, and ought to have been admitted. Haskins Avas the mere agent or broker,(b) and not a party in interest [62] and Herriman is expressly stated not to have any interest in the note, and was also released by the plaintiff. These witnesses were offered to disprove the usury, and were objected to by the defendant, and rejected by the judge. It has been pretended, that the objection coming from the defendant^ ought to conclude him as to the facts offered to be proved. But this idea is altogether incorrect. A party has a right to avail himself of any objection to the competency of a witness, and if Overruled, he has still an undoubted, .right to discredit his testimony, or oppose it by counter' proof. *ít has also been urged, that the plaintiff is in posSession of an equitable verdict; that the defence set up ■ by the defendant, being founded on usury, is unconscientious, and that the court ought not to interfere to relieve him from a just debt. There are cases in which these considerations, if true, Would have their weight, but whatever opinion may be entertained as to the morality of such a contract, 1 think we are bound by the statute to consider it as illegal and corrupt. To treat it differently, would contravene the declared sense of the legislature, and tend to defeat, the operation of an important act, founded on considerations of public policy: Upon the whole, I am of opinion that the case ought to be re-examined on all the proofs, and for that purpose that a new trial should be awarded. Kent, J. and Benson, J. concurred. Lansing, Ch. J. I do not differ from the opinion of the court, that Haskin is to be considered as the agent of Watkins, and of consequence that my exclusion of his testimony was improper. But 1 cannot concur in the effects ascribed to that opinion. If Haskin was the agent of Watkins, and he passed the note as such, the acts of Haskin must be considered as those [64] of his principal, and certainly, if he stands in that relation only, there is no proof of usury. The secret transactions between a principal and his agent, cannot influence the contract which he makes, for the benefit of his principal, with others. Haskin and Herriman were offered as witnesses on the part of the plaintiff, to vindicate his contract from the imputation of being usurious. If this evidence had been admitted, it could not place the defendant in a better situation. It cannot therefore be necessary, on the ground assumed by the court, to turn the plaintiff over to a new trial; for if there is now no proof of usury, the testimony of Haskin *and Herriman, as stated in the case, though it may tend to destroy suspicion, can never establish any fact material to the parties. I am, therefore, of opinion that the motion ought to be denied. Lewis, J. was of the same opinion. New trial granted. Footnotes [a] (a) See Wilkie v. Roosevelt, infra, vol. 3, p. 66, n. [b] (b) In the case of Payne v. Tresevant, 2 Bay, 23, a broker who had negotiated usurious paper between the borrower aud lender was held to be a competent witness to prove the nature of the transaction, although he was payer of the notes and had endorsed them in order to give them circulation. That agents, attorneys and servants are generally competent witnesses, ex necessitate, see supra, vol. 1, p. 274, n. a, to Cortes v. Billings, and add to the authorities there cited Dudley v. Bolles, 24 Wend. 465. Barnes v. Cole, 21 id. 188. Vanderburgh v. Hull, 20 id. 70. Noble v. Paddock, 19 id. 456. Morris v. Wadsworth, 17 id. 103. Sewell v. Fitch, 8 Cowen, 215. Mauran v. Lamb, 7 id. 174. Mildeberger v. Baldwin, 2 Hall, 176. Rankin v. Am. Ins. Co., 1 id. 619. Milward v. Hallett, 2 Caines, 77. Smith v. Huntington, 1 Root, 226. Shepard v. Palmer, 6 Conn. R. 95. Conner v. Moore, 5 J. J. [62] Marsh. 665. Connelly v. Childs, 2 A. K. Marsh. 242. Alexander v. Emerson, 2 Litt. 25. Swearingen v. Fields, 1 Dana, 387. Folly v. Smith, 7 Halst. 139. Ayres v. Van Lien, 2 South. 765. McLean v. Batchelor,, 8 Greenl. 324. Phelps v. Sinclair, 2 N. Hamp. 554. Rice v. Grove, 22 Pick. 158. Fuller v. Wheelock, 10 id. 135. Ruan v. Gardiner, 1 Wash. C. C. R. 145.