Banning v. Hall
| Decision Date | 10 November 1897 |
| Docket Number | 10,904--(129) |
| Citation | 72 N.W. 817,70 Minn. 89 |
| Parties | MARY A. BANNING and Another v. NELS HALL |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for St Louis county, Cant, J., denying a motion for a new trial. Affirmed.
Order affirmed.
Fryberger & Johanson, for appellant.
The issues should have been submitted to the jury. G. S. 1894 §§ 2217, 5361; Young v. Young, 18 Minn. 72 (90); Berkey v. Judd, 14 Minn. 300 (394); Greenleaf v. Egan, 30 Minn. 316; Chadbourne v Zilsdorf, 34 Minn. 43; Lace v. Fixen, 39 Minn 46; Peterson v. Ruhnke, 46 Minn. 115.
It was error to admit evidence of the price at which other owners were holding their property. 1 Greenleaf, Ev. § 50; Lehmicke v. St. Paul, 19 Minn. 406 (464); Papooshek v. Winona, 44 Minn. 195; Stinson v. Chicago, 27 Minn. 284; Minnesota v. Gluek, 45 Minn. 463; Atkinson v. Chicago, 93 Wis. 362; Finley v. Quirk, 9 Minn. 179 (194); 1 Greenleaf, Ev. § 52; Dorman v. Ames, 12 Minn. 347 (451); Boright v. Springfield, 34 Minn. 355; Plummer v. Mold, 22 Minn. 15; Ham v. Wheaton, 61 Minn. 212.
The evidence conclusively shows that the transaction was usurious. Quackenbos v. Sayer, 62 N.Y. 344; Lloyd v. Scott, 4 Pet. 205; Lewis v. Willoughby, 43 Minn. 307; Chase v. New York, 49 Minn. 111; Saxe v. Womack, 64 Minn. 162; Meyer v. Cook, 85 Ala. 417; Parker v. Maxwell, 51 Minn. 523; City v. Cheney, 61 Minn. 83; Tyler, Usury, 368; Mumford v. American, 4 N.Y. 463; Dry Dock v. American, 3 N.Y. 344; Low v. Estate, 36 Vt. 183; Pope v. Marshall, 78 Ga. 635; Stein v. Swensen, 46 Minn. 360; Fidelity v. Baker, 54 Mo.App. 79; Barr v. Collier, 54 Ala. 39.
The court should have granted defendant's motion to strike out all the findings not supported by the evidence. Conlan v. Grace, 36 Minn. 276. A party has a right to a finding on all the material issues raised by the pleadings. Lowell v. North, 4 Minn. 15 (32); Conlan v. Grace, supra; Clark v. B. B. Richards, 68 Minn. 282; Abrahamson v. Lamberson, 68 Minn. 454; Newman v. Newman, 68 Minn. 1.
Walter Ayers and H. J. & E. A. Horn, for respondents.
The transaction as found by the court is not usurious per se. Saxe v. Womack, 64 Minn. 162. If the vendor agree to sell at a certain price and the vendee agree to purchase at that price, and a sale was clearly intended by the parties, it is of no consequence if the price agreed on is above or below the market price or value of the property. Saxe v. Womack, supra; Bank v. Waggener, 9 Pet. 378, 400. It is common in commercial transactions to ask a higher price for a sale on time than for a sale for cash. Brooks v. Avery, 4 N.Y. 225. The question is as to the intent of the parties, even if the sale of the property was insisted upon as a condition of making the loan. Thurston v. Cornell, 38 N.Y. 281. A corrupt and usurious agreement will not be presumed from a fact which is equally consistent with a lawful purpose. Valentine v. Conner, 40 N.Y. 248. The court below having found the transaction not usurious, assuming that there may be a conflict of evidence or inference upon the question, the onus is upon the defendant to prove that the transaction is usurious, and the finding should stand. Yellow Medicine v. Cook, 61 Minn. 452; Saxe v. Womack, supra.
Where the action involves an issue of fact which is not for the recovery of money only, a trial by jury is not a matter of right. G. S. 1894, §§ 5360, 5361. Under our practice a counterclaim by defendant demanding affirmative relief is equivalent to a cross action. Eastman v. Linn, 20 Minn. 387 (433). If the defendant had a right to a jury trial, it was waived by his failure to object to a trial by the court at the time. Davis v. Smith, 7 Minn. 328 (417).
This is an action by the personal representatives of the testator on a promissory note for $ 2,500 made to him in his lifetime.
The answer admits that defendant executed the note, but alleges that it grew out of the following transaction: Defendant applied to the testator, Banning, in his lifetime for a loan of money. After various negotiations, Banning offered to loan defendant $ 3,000 and, as a condition of loaning the same, to sell and convey to him two certain lots owned by Banning in Duluth for the price of $ 3,000, to take a mortgage on those two lots to secure $ 2,500 of this price, and to take another mortgage on certain other real estate in Duluth, then owned by defendant, to secure the balance of $ 3,500; this balance being $ 500 of said purchase price, and $ 3,000, the amount so loaned. That the two Banning lots were then of no greater value than $ 1,500, as Banning and defendant well knew, and that said arrangement was proposed and accepted as a means by which Banning would exact usurious interest, and as a device to cover up usury. That Banning conveyed said two lots to defendant, who executed the promissory note in suit, for $ 2,500, and, to secure the same, executed to Banning a mortgage on said two lots, and also executed to Banning a note for $ 3,500, and, to secure the same, executed a mortgage on said other real estate owned by defendant. It is alleged that these notes and mortgages are all usurious and void, and the answer prays that all of them be declared usurious and void, and that they be ordered canceled and delivered up.
On the trial before the court without a jury, the court found that the transactions set up in the answer were not usurious, denied defendant any relief, and ordered judgment for plaintiffs for the amount of said $ 2,500 note. From an order denying a new trial, defendant appeals.
1. The court below did not err in denying defendant's motion, made some time before the term, that "all the issues made by the pleading" be tried by a jury. If this was not a jury case, the granting or denying of the motion by the court was discretionary. If it was a jury case, as defendant contends, no such motion was necessary, and defendant waived his right to a jury trial by failing to demand it when the case was called for trial, and proceeding to trial, without objection, before the court without a jury.
2. It may be perfectly legal to sell real estate and loan money in one transaction. The transaction here in question is not on its face usurious, and the burden was on defendant to show that it is. There is but little conflict in the evidence. Banning was dead, and therefore plaintiff was incompetent as a witness on his own behalf as to the conversations between him and Banning. A third party, who acted as agent for one or the other, or both, testified that defendant applied to him for a loan of $ 6,000; and he submitted the application to Banning, who rejected it on account of the insufficiency of the security, and the matter was dropped.
Subsequent negotiations were had from time to time, when Banning made the defendant a proposition to loan him $ 3,000, provided he would purchase the two lots for $ 3,000 more. Defendant answered that he did not want the lots, and also protested that the lots were not worth any more than $ 2,500. But after protesting several times, defendant agreed to the proposition. This was in August, 1893. The...
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