Berry v. Kingsbaker

Mr. Presiding Justice Baker delivered the opinion of the court. If the defendant had filed with his special plea of usury a plea of set-off he would have had the right to offer evidence to prove the sét-off as well as the usury, but he could not make the defense of usury under a special plea and give evidence to prove a set-off under a notice of special matter. He gave evidence in support of his plea of usury and thereby waived his notice of set-off. Wyatt v. Dufrene, 106 Ill. App. 214, and cases there cited. Ho doubt where a note is giveji in renewal of another note, upon a proper plea, usury in the transaction out of which the first note grew may, as between the original parties, be shown. But the note which the evidence of the defendant tends to show, it was agreed should be made, dated February 2, 1903, and signed by defendant and a surety, was never completed. The suit was upon the original note. The evidence as to the proposed note of February 2, 1903, was offered to prove' that the parties then agreed that the sum of $1,734 was the amount due from defendant to plaintiff. The defendant was entitled to prove such an agreement under his plea of non assumpsit, but was not entitled, first, to prove such an agreement and then to prove that the amount so agreed upon included usury or other illegal or improper items or charges in favor of the plaintiff and against the defendant. The amount of the judgment is but one dollar and seventy-nine cents more than the amount defendant’s evidence tends to show the parties agreed upon as the balance due from defendant to plaintiff. Twenty-one days intervened between the verdict and the judgment and under the statute (R. S., Sec. 2, Chap. 74,) interest on a verdict from the time it is rendered to the time of judgment is to be included in and made a part of the judgment. The interest on $1,734 for twenty-one days is more than one dollar and seventy-nine cents. The judgment of the Superior Court will be affirmed. Affirmed.