St. Maries v. Polleys

Cole, J. It is doubtful whether some of the questions which were so fully and ably discussed by counsel on the argument, are fairly presented by this record. Eor instance, whether or not parol pi’oof was admissible to show that Weston signed the notes in suit as surety, is out of the case, for the reason that the answer’s alleged that he executed the notes as surety, and testimony was given on the trial, without objection, to show his relation to the notes. That question may therefore be dismissed without further comment. We are unable to agree with the learned counsel for the defendants in the position that there is no evidence in the case worthy of credit, to support the verdict. To our minds there is sufficient evidence to sustain it, even as against the defendant Weston. In saying this, we do not mean that there is what is called in the books a mere scintilla of evidence in favor of the conclusion reached by the jury, but that there was evidence upon which a jury might proceed to find as they did, within the reasonable rule laid down on this subject in Toomey v. L., B. & S. C. Railway Co., 3 C. B., N. S., 150; Jewell v. Parr, 13 C. B., 909; Improvement Co. v. Munson, 14 Wall., 448. If the jury were satisfied that the plaintiff told the truth in regard to the transactions about which he testified, they might well have concluded, either that Weston was not a surety, but one of the principal makers of the notes, or, if he was a surety, that the plaintiff had no notice of that fact when the notes were executed and delivered; or, finding that Weston was a surety, and known to be such by the plaintiff when the notes were given, then that there was no valid agreement shown to extend the time of payment, so as to exonerate him from liability. The jury might have been satisfied that either one of the above states of facts was clearly established, and consequently found as they did. It is true that there was testimony which directly and positively, in some material points, contradicted this testimony of the plaintiff. But the credibility and weight of the testimony was a matter exclusively for the jury, [76] and we cannot disturb the verdict because we think they reached a wrong conclusion upon it. We have no right to say the jury erred in believing the statements of the plaintiff rather than the opposing statements. It is enough that there was evidence from which the jury might reasonably and properly have found that either one of the above propositions of fact was true. It is further insisted that the court below erred in excluding the evidence offered to prove that the premium on gold advanced between the making of the notes and the time they fell due. It is said that the proposed testimony had a tendency to discredit the statements of the plaintiff in regard to conversations which he testified he had with Polleys when the notes became due in 1872, and therefore should have been admitted. We are unable to see that the proposed testimony could have any such effect or tendency. It seems to be entirely immaterial and irrelevant for any purpose. It was not limited to the time when the notes became due, which was the time the plaintiff said he told Polleys gold was falling, and he was losing on the premium. In regal’d to the last defense set up in the answers, the court in effect charged that, if an agreement was entered into between the parties upon a sufficient consideration, whereby the time of payment upon the notes was extended to August 8, 1878, this w’ould defeat the action as to both defendants. The jury were further told, that, if the proof showed that Weston was a surety merely, to the knowledge of the plaintiff, then any agreement for an extension of the time of payment made with the principal debtor upon a good consideration, and without the consent of the surety, would release the surety from all liability on the notes. As to what consideration was necessary to support an agreement to extend the time of payment, the court also charged that an agreement to pay a bonus or interest in excess of ten per cent., being illegal, would not constitute a sufficient consideration; but that an [77] agreement to pay interest upon interest .already accrued and due, or to pay it upon interest to become due, after the time it became due, not being illegal, would be a good consideration for an extension of the time of payment. And this brings us to the third ground assigned for reversing the judgment, which is the error in the ruling of the circuit court in rejecting certain evidence, and in charging the jury that an agreement to pay a bonus or interest in excess of ten per cent, per annum would be illegal and would not support an agreement to extend the time of payment. As to the first point, it is necessary to observe that Polleys was examined on the trial, and had stated, in substance, that when the year came around in August, 1878, plaintiff reloaned the money to him for three years, upon the consideration of §150, and also that he was to give the plaintiff employment any time he wanted to work during that time. lie was then asked this question: “At what rate?” This question was objected to, for the reason that the agreement was usurious and void, and because it was an attempt to vary the terms of a written contract by parol evidence. This objection was sustained. It is not clear whether the question referred to the wages to be paid plaintiff for his work, or to the rate of interest to be paid on the notes. Assuming, however, that it related ^to the latter, we suppose it too plain for argument that the defendant might prove by parol the usurious agreement, if one was made. Parties do not generally reduce their usurious contracts to writing, and unless the real agreement could be shown by parol, the statute would practically be evaded in all cases. It is said by plaintiff’s counsel, that the proposed evidence was inadmissible under the allegations of the answer. But this is a mistake; for Polleys, in his answer, states that plaintiff proposed to loan him the money for three years from the eighth of August, 1873, upon condition that he would pay a bonus of §50 a year; that he accepted the proposition; that the time of payment was extended; and that he paid under [78] the agreement $150 for the extension. But we think the true answer to be given to this exception is, that the defendant could not have been prejudiced by the ruling, because the witness subsequently testified fully as to all the agreements set up in his answer to extend the time of payment, and the consideration for these extensions, especially about the one made in August, 1873. And he leaves the matter in much doubt, whether in fact any agreement to extend the time of payment was at that time entered into. He says that he paid the plaintiff $150 about the fourth of July, 1876; that he understood he was paying this as a bonus on the money which he agreed to pay each year; that previous to this time the plaintiff came to him and said he would not take money under that contract (evidently referring to the memorandum on the notes that, if interest was not paid annually, the interest was to draw interest, which memorandum Polleys says he wrote two or three months after the notes were given), because he, the plaintiff, had been told that it made the note worthless. Polleys replied it made no difference to him, and the plaintiff wanted it to be considered as a bonus instead of compound interest. The testimony of Polleys, as contained in the bill of exceptions, is vague and very unsatisfactory. He nowhere positively states that there was any such agreement made as is set out in his answer, and we are inclined to think none such was made. At all events, the error in excluding the' question referred to above, in the first instance, was cured by the subsequent examination of the witness upon the same subject. The point made upon the charge we deem untenable. The proposition contained in the charge is, that an executory usurious agreement to extend the time of payment, being illegal, was not a good consideration in law for any agreement whatever, and did not release the surety. Such was the decision of this court in Meiswinkle v. Jung, 30 Wis., 361, which we think lays down the correct rule on the subject. See also Riley v. Gregg, 16 Wis., 667, and note of C. J. Dixon at the end of the case. [79] This case was argued upon the assumption that the court held that an usurious agreement which had been executed by the payment of the usury, on the part of the borrower, would not support such an agreement to extend the time of payment; but it is very obvious that this is not the meaning of the charge. The court was speaking of an agreement to pay cmd receive more than legal interest. Whether the same rule would obtain in case of an executed agreement, is a question not passed upon in the charge, and not presented to this court for decision. JBy the Court. — The judgment of the circuit court is affirmed.