Adamson v. Wiggins
| Decision Date | 27 February 1891 |
| Citation | 48 N.W. 185,45 Minn. 448 |
| Parties | Charles E. Adamson v. Eva S. Wiggins |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the municipal court of Minneapolis, refusing a new trial after verdict for defendant in an action of replevin for household goods of the value of $ 300.
Order affirmed.
Merrick & Merrick, for appellant.
Thomas Canty, for respondent.
The plaintiff brings this action to recover the possession of certain personal property described in the complaint, the plaintiff alleging that he is the owner and entitled to the possession thereof. The defendant interposed an answer denying generally the plaintiff's allegation of ownership. To establish his right to recover the possession of the property, plaintiff introduced in evidence a chattel mortgage thereof executed to him by the defendant, to secure her note of the same date for the sum of $ 210, with interest at 10 per cent. per annum, and payable in 30 days after date. Defendant admitted the execution of these instruments, but offered and was permitted to introduce evidence tending to prove that they were usurious and void. The evidence was received under the objection and exception of the plaintiff that it was irrelevant and inadmissible because the defence of usury was not specifically pleaded. Where the action is brought to set aside an instrument as usurious, of course the facts must be specifically alleged; and so, in an action brought to recover upon or to enforce a contract claimed by defendant to be void for usury, such affirmative defence is new matter in confession and avoidance, which must be affirmatively alleged in the answer. But where, as in this case, the plaintiff alleges title generally to the property in question, the defendant may deny generally the allegations of title and ownership, and, under such denial, he may attack the contract or instrument upon which plaintiff relies to prove his title, and show that it is void for usury, as well as for fraud. And there is no distinction in such cases between the defence of usury and other defences which tend to disprove the plaintiff's case, and show that he had no title. Fulton Bank v. Stafford, 2 Wend 483; Wakefield v. Day, 41 Minn. 344, (43 N.W. 71;) Johnson v. Oswald, 38 Minn. 550 (38 N.W. 630.) This disposes of defendant's objection to evidence, on the ground stated, and to his exception to the modification of his first request to charge the jury.
2. It appears from the evidence that the plaintiff is a non-resident, and that one William H. Adamson, who was extensively engaged in loaning money upon chattel mortgages in Minneapolis, was the person who negotiated the loan to defendant upon the mortgage under which plaintiff claims title to the chattels in controversy here. It was entirely proper to show the relations between these parties, and that William H. Adamson was the general agent of plaintiff in the business of making loans, and also the manner in which the plaintiff's business was conducted by the agent under his general authority to invest and reinvest plaintiff's money, and the circumstances under which the loan in question was made. The evidence tended to show that the agent was left to conduct the business according to his own judgment and discretion;...
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