Warren's Appeal

Opinion by Mr. J ustioe Trunkey : The coimsel agree upon the question of law involved. If Kuhlemeier merely purchased the judgments at a discount, the defendant is bound to pay the full sum of the principal and interest. If he loaned the money to Mrs.' Warren, the payment thereof to be secured by assignment of the judgments and certificates of no defense or set-off, the transaction was usurious and he is entitled to recover no more than he actually loaned, with interest from the date of the loan. It matters not what is the form of the contract or of the device to conceal the fact that the lender gave less money than the borrower agreed to pay,for in any action to enforce a usurious contract, the defendant, if he can, may prove the amount of usury and, thereby, to that extent, defeat the claim. On July 28, 1882, Kuhlemeier paid $800 to Neuber and received an assignment of two judgments against Mrs. Warren, one for $500 and one for $350, with the interest accrued from October 18, 1878. Some of Mrs. Warren’s creditors were pressing for payment, and she urgently requested Kuhlemeier to pay said sum and take the judgments. And as further inducement she delivered to him certificates of no defense or set-off. Neuber did not sell the judgments at a discount. He received from Mrs. Warren the difference between the $800 and the amount of the judgments, $225.68, before executing the assignments, and Kuhlemeier knew of such payment at the time. These alleged facts a jury would be warranted in finding from the testimony. Other facts and circumstances are narrated by the witnesses. At present it is well to forbear comment, as we are of opinion that the judgments should be opened, to the end that a jury may determine whether Kuhlemeier bought them from Neuber, or loaned the money to Mrs. Warren. The order discharging the rule is reversed, and now judgment opened and defendant let into a defense, appellee to pay costs of appeal. Kecord remitted for further proceeding.