Grayson v. Brooks

Cooper, C. J., delivered the opinion of the court. The demurrers to the first and third amended pleas should have been overruled. By these pleas the defense was made that the sole consideration of the contract sued on was usurious interest on a certain note for eight hundred dollars, executed at the time of the contract for goods then agreed to be sold ; that the true intent and purpose of the contract was to secure more than the highest interest allowed by law, and that the form of this contract was resorted to as a scheme and device to cover up and conceal its real nature. The position assumed by counsel for appellees that it is not permissible to vary the writing by evidence of a contemporaneous oral agreement is untenable in cases in which, as here, the effort is to show that the agreement is wholly without legal effect. Where the parties have reduced their agreements to writing, it is not admissible to show another contract than that evidenced by the writing, but where, by the fraud of one or both of the parties, the true contract is not shown by the writing, and is not intended to be so shown, the principle invoked has no application. Cocke v. Blackbourne, 58 Miss. 537; Cocke v. Blackbourne, 57 Miss. 689. The laws against usury could be easily avoided and evaded if the creditors, by resorting to the simple device of taking from the debtor a contract legal inform for the performance of some obligation not prohibited by law, could bar the courts from exploring the transaction to discover its real character. If, as the pleas state and the demurrers admit, the contract sued on was really a scheme and device to cover usurious interest, it is as incapable of supporting an action as though its true nature and purpose were written on its face. [417] The second and third original and the second amended pleas were insufficient, and the demurrers thereto properly sustained. Tittle v. Bonner, 53 Miss. 578. With his special pleas the defendant gave notices of special matter to be given in evidence on the trial of the cause. These notices lend no aid to the insufficient pleas, nor is there any rule of pleading known to us which warrants notice of this character to be given under a special plea. Our code (§ 1550) permits a defendant to, plead the general issue and give notice of special matter thereunder, but this notice is intended to take the place of special pleas and is wholly inappropriate when given under the special plea itself. The fifth and sixth amended pleas are bad because they are not pleas in bar of the action but in mitigation of damages. Matters in mitigation of damages merely should be given in evidence under the general issue, for by that plea the defendant puts upon the plaintiff not only the proof of his injury, but its extent. Hopple v. Higbee, 3 Zabriskie 343. The judgment is reversed and cause remanded to be proceeded mth anew in the court below.