Blackwell v. Wright

• Decision Date: 17 September 1889
• Citation: 27 Neb. 269,43 N.W. 116
• Parties: BLACKWELL ET AL. v. WRIGHT.
• Court: Nebraska Supreme Court

27 Neb. 269

43 N.W. 116

BLACKWELL ET AL.

v.WRIGHT.

Supreme Court of Nebraska.

Sept. 17, 1889.

Syllabus by the Court.

1. Plaintiffs, who were in possession of a promissory note, and chattel mortgage given to secure it, instituted an action in replevin against the mortgagor for the possession of the mortgaged property. The defense presented was that the note was tainted with the vice of usury, of which the plaintiffs had knowledge at the time of the alleged purchase; that the purchase was colorable only, and not bona fide; and that sufficient payments had been made on the original indebtedness to cancel it. Defendant called a member of plaintiff's firm to the witness stand, and, over the objection of plaintiffs, interrogated him as to his knowledge of the business methods of the payee of the note, and showing by him that he was somewhat familiar with the transactions of the payee's bank, (a member of which was the brother of the witness,) and that usurious interest was usually charged by such payee. It was held that although not conclusive against plaintiffs, yet the evidence was competent as a circumstance to be considered by the jury in connection with other proven or admitted facts as tending to establish notice of defense.

2. While a party who calls a witness as his own may not discredit his testimony by impeaching him, yet this rule does not prevent such party from proving the truth by other witnesses, even though the witness first called may be contradicted thereby.

3. Usury being shown in the original transaction, and the burden of proof being upon plaintiffs to show the good faith of the transfer of the promissory note to them before maturity, the verdict in favor of defendant is sustained as not being against the evidence.

Error to district court, Hamilton county; NORVAL, Judge.L. G. Hurd and Robert Ryan, for plaintiffs in error.

A. W. Agee and Hainer & Kellogg, for defendant in error.

REESE, C. J.

This was an action in replevin, instituted in the district court of Hamilton county by the assignee of the mortgagee for the possession of certain personal property mortgaged by defendant in error to Updike & Titus, for the purpose of securing the payment of a promissory note made by defendant to them, and which note, it is claimed by plaintiffs, was indorsed to them by the payee before maturity in the due course of trade, and for value. The defense presented was that the note was tainted with the vice of usury; that it was a renewal of a number of preceding notes upon which interest had been paid more than sufficient to cancel the original indebtedness, with a denial of plaintiffs' claim that they were good-faith purchasers before maturity. A jury trial was had which resulted in a verdict in favor of defendant, finding the value of the property in dispute to be $408, and assessing his damages at $5. A motion for a new trial was filed, based upon the following grounds: “(1) The verdict is not sustained by sufficient evidence; (2) errors of law occurring at the trial and duly excepted to; (3) the verdict is contrary to law.” Before a ruling upon the motion for a new trial was made, the defendant remitted $4.99 from the verdict for damages, when the motion was overruled, and judgment was rendered for a return of the property and one cent damages; or if a return could not be had, for $408, the value of the property. From this judgment the cause is brought to this court by plaintiffs by proceedings in error.

Upon the trial, plaintiffs placed George W. Updike, a member of the firm of M. D. Blackwell & Co., plaintiffs, and who are bankers in Harvard, upon the witness stand for the purpose of identifying the note and mortgage, and proving ownership thereof, and demand of defendant for the possession of the property in dispute; and after the introduction of the note and mortgage, plaintiffs rested their case. Defendant thereupon recalled the same witness for the purpose of proving the circumstances under which the note was purchased, and doubtless by which he desired to throw suspicion upon the transaction, and show thereby that the transfer was colorable only; and with intent to deprive defendant of any defense he might have to the note in the hands of the payee, Updike & Titus, which was also a banking firm doing business in Harvard, and which consisted of Edmund Updike and J. O. Titus. The testimony of this witness, while given with apparent candor, was not such as would fully establish the fact sought to be shown by defendant. In this connection, defendant was permitted to interrogate him as to his knowledge of the methods of Updike & Titus in their business transactions, and the rate of interest charged by them, Updike, of the firm of Updike & Titus, being a brother of the witness. It was shown that the rate of interest usually charged was more than the legal rate, and of which the witness had knowledge. This was, doubtless, for the purpose of impeaching the bona fides of the purchase. While the fact alone, that the purchaser of the note knew that the vendor and payee was loaning money at an usurious rate, might not of itself be sufficient to charge the purchaser with notice of the defense of...