Fisher v. Shands

Stephens, J. This was a suit upon several promisory notes, by the payees thereof, against the maker and the indorser. Both defendants in their pleas alleged that the notes as originally made and executed called for interest at the rate of 10 per cent, per annum, [744] and, after having been so executed, were altered by the plaintiff so as to call for interest at the rate of 8 per cent, per annum. Both defendants contended that as the notes originally called for 10 per cent, interest per annum, they constituted an usurious contract, and that they operated as a contract drawing interest at the rate of H per cent, per annum. The maker alleged that such alteration was material and was made by the plaintiffs, who claimed a benefit thereunder, with intent to defraud him, and that the notes sued upon did not constitute the same contract originally entered into by him with the plaintiffs, and that he was not liable thereon. The indorser alleged that he was a mere surety upon the notes, and that such alteration had been afterwards made by the plaintiffs without his consent and with intent to defraud him, that his risk as surety was thereby increased, and that this act upon the part of the plaintiffs operated to release him from his contract of surety-ship. There was evidence on these issues. The jury found for the plaintiffs against both defendants for the principal sum sued for with interest at the rate of “8%” per annum. The judge having charged the jury that if the notes had been altered so as to call for 8 per cent, subsequent to their execution by the maker and indorser, they should be regarded as drawing interest at the rate of H per cent, and, the jury having found a verdict finding the interest at the rate of 8 per cent, and finding the surety liable, they necessarily concluded that the notes had not been altered and that the surety’s risk had not been increased, but that the notes when originally made and executed both by the maker and indorser, called for interest at the rate of 8 per cent. If the jury had found that an alteration had been made, even though without intent to defraud, they would not have found, under the charge of the court, a verdict for interest at the rate of 8 per cent., but would have found a verdict for interest at 7 per cent. The jury having found that the notes were not altered and that the surety’s risk was not increased, and that he was not exposed to greater liability, an instruction to the jury that in order to discharge the surfety by an alteration which increased his risk, it must have been made with intent to defraud, was harmless. There being a miscalculation as to the interest and attorney’s fees, the same being excessive, direction is given that the verdict [745] be corrected so as to read for the true amounts, viz., $710.93 interest, and $333.75 attorney’s fees. Judgment affirmed, with direction. Jenkins, P. J., and Smith, J., concur.