Meshke v. Van Doren

By the Court, Cole, J. There is a great number of exceptions contained in this record. Many of them we consider quite immaterial or not of sufficient importance to require notice here. Indeed, the case seems to have been tried upon the idea that everything must be objected to and as a consequence we have a multiplicity of exceptions. Only a few of the more material ones will be specialty considered. The action was brought by the respondent in the county court of Winnebago county, to recover the sum of $120 which bad been loaned the appellanl, and likewise the sum of $231,IS the amount of a promissory note given by the appellant. On the trial, objection was taken to the admission of any evidence under the complaint, for the. reason that it was not alleged that, the court bad jurisdiction of the action; and because there was no averment of present indebtedness. The court beld the first ground of objection untenable and permitted an amendment to the complaint to obviate the other objection. The ruling of the court was undoubtedly correct. The law of 1860, (S. Laws 1860, chap. 391,) conferring upon tbe county court of Winnebago county, jurisdiction in civil cases equal to and concurrent with tbe circuit court for all sums not exceeding five hundred dollars, was a public act of which the — 323 — court would take judicial notice, and abare inspection of the complaint would • show that the court had jurisdiction of the action. The amendment which was allowed to obviate a technical objection to the complaint, was very proper under the circumstances. Even concéding it was necessary, it could not possibly injure any one. Nor can we see any valid objection to the manner in which the amendment was made. At the commencement of the trial and before any evidence was given, the counsel for the defendant requested the judge to reduce his charge to writing, and it is now objected that this .was not done. This has been sufficiently answered by the remark, that the record fails to show whether this request was complied with or not. In the absence of anything to the contrary, we must presume that the charge was in writing. Besides it would seem to be anticipating matters somewhat, to make such a request even before any evidence was introduced, and before it was known that there would be any case to go to the jury. But there is no necessity for dwelling upon this point further in the present state of the record. The other principal exceptions, aré those which arise upon the refusal of the court to give the instructions which were asked on the part of the defendant and also the exceptions taken to the charge which was given j It was insisted that the rule of damages laid down by the court was incorrect. The action was commenced by a summons and attachment upon which a quantity of wheat belonging to the defendant was seized. There was a traverse of the affidavit for the attachment and this issue was found against the plaintiff. The court thereupon dissolved the attachment and ordered the wheat to be re-delivered to the defendant. On the trial of the main issue, the defendant claimed to recover the damages sustained by him by reason of the taking and detention of the wheat, and that such damages should be assessed and allowed as an off-set to the plaintiff’s demand. On this point the court instructed the jury, that the measure of — 324 — damages for the taking and detention of the wheat was the difference in the value of the wheat at the time it was taken out of defendant’s possession by the sheriff, and its value at the time of its re-delivery. And further that the jury might give the defendant as damages in their discretion, interest from the time of the taking to such re-delivery. The court further instructed the jury in effect, that they must determine from the evidence what damage the defendant had sustained by reason of the attachment of his property, and likewise the amount of costs which he had obtained on the trial of the traverse and apply such sums as an offset. We think these instructions substantially correct in view of the evidence. The testimony showed that wheat bore about the same market value when seized upon the attachment and when re-delivered to the defendant. In the intermediate period, it appeared there was considerable rise in the price for a day or so. The defendant claimed that he should have the benefit of this rise in the value, although he did not show that he could or would have sold at that price. He was of course entitled to recover damages for any loss which he had sustained in consequence of being deprived of the use and control of his property during the pendency of the attachment, or for any injury thereto or loss thereof, together with costs incurred by him on the trial of the traverse. S. 26, chap. 130, R. S., 1859; Dunning vs. Humphrey, 24 Wend., 31; Groat vs. Gillpin, 25 id., 383; Pettit vs. Mercer, 8 B. Monroe, 51. These damages the jury were directed to allow him under the rule laid down by the court. But to have permitted him to recover the difference between the highest market value of the wheat at any time during the pendency of the attachment, and the value when re-delivered to him without giving any testimony that he could or would have availed himself of that opportunity to sell it, seems to us would have been erroneous. Such a rule would be giving damages for injuries which the party had never sustained. — 325 — We have already stated that the action- was brought to recover $120, money lent, and also the amount of a promissory note for $281.13, given by the appellant to the respondent sometime before June 1, 1859. In his answer, the appellant, after admitting this indebtedness, proceeds to state and allege in avoidance and as a defense to the action, that on the 1st day of June, 1859, at the instance and request of the respondent, he gave him a promissory note for $351.13, payable one year from date, with fifty dollars interest, and that the note was taken and received by the respondent in full payment and discharge of such prior indebtedness. And he further insists and alleges that this last note is usurious and void. This defense was sustained on the trial by the testimony, and must have the effect to defeat the action, if a valid existing indebtedness can be discharged by a void and usurious security. The appellant contends that the receipt of the usurious note and mortgage accompanying it, had the effect to extinguish the previous indebtedness. The court, however, denied the soundness of this position, and in substance instructed the jury that taking the usurious note did not discharge and satisfy the pre-existing indebtedness, even though so intended by the parties, but that the respondent might recover upon it. It is claimed that this instruction is erroneous. It cannot be denied that it is in strict harmony with the general course of decisions upon this subject, both in this country and in England. For no principle of law has been more clearly laid down in numerous and most carefully considered cases than, that a valid subsisting debt is not destroyed by a void and usurious security. The following cases upon the point have come under my ob - servation while considering this question, and I have no doubt the list might be greatly increased. They are sufficient in number and respectability to show what the law upon the subject has been declared to be: Ferrial vs. Shaven, 1 Saunders R., 295, note 1; Rex vs, Allen, Sir T. Raymond’s R., 197; The Queen vs. Sewel, 7 Modern, 119; Gray vs. Fowler, 1 H. Black — 326 — stone, R., 462; Fossil vs. Brookes, 2 C. & P., 314; Phillips vs. Cockayne, 3 Campbell, 119; Bush vs. Livingston, 2 Caines’ Cases in Error, 66; Swartwout vs. Payne, 19 Johns., 293; Hughes vs. Wheeler, 8 Cowen, 77; Merrill vs. Law, 9 id., 65; Rice vs. Welling, 5 Wend., 595; Hammond vs. Hopping, 13 id., 505; Vilas, et al, vs. Jones, et al, 1 Comstock, 276; Johnson vs. Johnson, 11 Mass., 359; Parker vs. Cousens, 2 Grattan, 372; Trautman vs. Barnett, 9 Geo., 30. The doctrine of these cases has been fully recognized and approved by this court in Eastman vs. Porter, 14 Wis., 39. In this ease,-the chief justice, in alluding to the origin and reason of the rule, says: “ It is a clear rule of the common law, that a subsisting simple contract is not discharged or relinquished by the acceptance of another contract of the same nature, given by the same party, and founded upon the same consideration, unless it be expressly so agreed. If a valid new contract or security does not extinguish or destroy the pre-existing debt for which it is given, it would be very strange if a void one were to have that effect.” And this is the clear and emphatic language of the cases, that a note void in its creation, for being usurious, will not defeat and destroy an existing liability, against which there is no defense. A contract originally valid, remains so, and stands unaffected by any subsequent arrangement which is utterly void. It may be claimed that there is an inconsistency in the law, in enabling a party to abandon a subsequent usurious engagement, and fall back and recover upon the original indebted-edness, when it would deny an action to recover back money or any chattel paid and delivered in pursuance of the usurious agreement. It is true that a party is not permitted to recover back money or property once paid or applied in satisfaction of an usurious debt. Such payment is considered a voluntary one, and in equity the courts say the lender is entitled to retain the amount actually loaned with interest. And while they will refuse to enforce a Usurious contract, yet, when ex e-cuted, they permit it to stand. So it is said, a contract fair un — 327 — der the law when made, is fair to the end. It shall' not be deemed merged in or extinguished, by any subsequent usurious contract relied on to destroy it. As I understand the eases, this is the distinction, and whether founded in reason and sound principles, I am disposed to adhere to the settled law upon the subject. These remarks dispose of all of the questions upon the instructions which we deem material or necessary to be noticed. The judgment of the county court is affirmed.