Ormund v. Hobart

Berry, J. The contract between plaintiff and defendants was evidenced by the note and bill of sale. The contract was usurious, as well as the note by which it was evidenced, and both were therefore void by statute, as -well as the bill of sale, which was only security for them. Laws 1879, c. 66, § 3. The statute, therefore, leaves no ground upon which to claim that there was a valid indebtedness for the money actually loaned, notwithstanding the usurious character of the note and of the whole transaction between the parties. The cases which hold that a pre-existing valid debt is not lost, although the amount of it is included in a usurious and void note, are not in point to the contrary. It appears that the bill of sale covered certain cattle, and that, the note not having been paid when due, the cattle were put into the hands of one Thompson. The plaintiff insists, and the testimony adduced in his behalf went to show, that he did not consent to this, but that it was done against his objections. But the defendants claim, and their evidence tended to show, that the cattle were put into Thompson’s hands with plaintiff’s consent and co-operation, and upon an agreement that if, at the end of 10 days, the note or debt was not paid, they (defendants) might take them, together with other property covered by the bill of sale, in satisfaction and payment of the'debt, as they insist they have done. Giving the defendants the utmost extent of this their claim, it does not make out a legal right on their part to take and appropriate the cattle. It does not show that the cattle were actually turned over to them in payment of [308] the usurious indebtedness, so as to pass title and property. They were, according to defendants’ claim, put into Thompson’s hands as continued security for 10 days. This was not turning them out in payment, so as to pass title. The agreement upon which they were put into Thompson’s hands was itself void. It did not bind the plaintiff, for, at most, it was nothing more than an extension or continuance of the original usurious security. It gave the defendants no right to take the cattle, or to appropriate them to the payment of their claim; so that when they took them as they assumed to do, whether under the bill of sale or the agreement by which they were left with Thompson, they acquired no right to them, as against plaintiff. Their taking was therefore unauthorized and unlawful, and, in the absence of some assent of plaintiff beyond the agreement by which they were left with Thompson, there is no legal ground upon which to hold that they were turned out in payment of defendants’ claim, so as to pass title. The cattle having been wrongfully taken by defendants, no demand of them was necessary before bringing this action to recover their value; and, irrespective of this, the necessity of showing a demand would be dispensed with by defendants’ claim (in their answer) of ownership of the cattle and consequent right to their possession. Kellogg v. Olson, 34 Minn. 103, (24 N. W. Rep. 364;) Ellingboe v. Brakken, ante, p. 156. These conclusions dispose of the substance of this appeal. Several of the assignments of error are supported by no sufficient exceptions, and, though the trial court’s view of the law applicable to the case was not altogether accurate, no substantial prejudice could have followed. Judgment affirmed.