Fugate v. Carter

• Decision Date: 30 June 1840
• Citation: 6 Mo. 267
• Court: Missouri Supreme Court
• Parties: FUGATE & YOUNG v. CARTER.

6 Mo. 267

FUGATE & YOUNG

v.CARTER.

Supreme Court of Missouri.

June Term, 1840.

ERROR TO THE CIRCUIT COURT OF LINCOLN COUNTY.

WILLIAMS and HOWELL, for Plaintiffs in Error. 1st. That the court refused a change of venue. 2nd. That the court erred in overruling the exceptions of the defendants to the answer of the plaintiff, to the defendant's bill of discovery. 3rd. That the court permitted the plaintiff to read his answer to the defendants' bill of discovery, after he had closed his case, and against the consent of the defendants. 1 Rand. 182 and 187. 4th. That the court misinstructed the jury. 5th. That the court refused to set aside the finding of the jury and grant a new trial. See Mo. Laws, p. 614 and 15, title Venue, §§ 2 and 3; 3 Mo. R. 147, Jim v. State; Wilson, Adm'r of Owen, v. Woodruff, 5 Mo. R. 40; 2 Story's Equity, 745; Fenton v. Perkins, 3 Mo. R. 23.

WRIGHT, for Defendant in Error. 1st. Exceptions to answer, bad in point of form, as being too general, except the 4th exception, and all the exceptions, in point of fact, are bad. 2nd. If the answer was read, which is denied, by especial reference to that part of the record, which professes to give all the evidence which was read in the cause. Rev. Code, 462 and 463; Fonblanque, 705-706-710-711-719; Tuck. Com., p. 431, 432; Rev. Code, 361.

NAPTON, J.

Carter sued plaintiffs in error by petition in debt before the Circuit Court of Monroe county, on a note of five hundred dollars; the note was as follows: $500. One day after date, we promise to pay to Peter Carter, or order, the just and full sum of five hundred dollars, with ten per cent. interest from the 25th day of December last, until paid. Paris, Mo., 2nd March, 1839. Reuben Fugate, Wm. Young. To this, defendant plead usury in the consideration; the plea averred that on the 4th December, 1836, a corrupt agreement was made between plaintiff and Fugate, for a loan of five hundred dollars to said Fugate, until the 4th of June, 1837, at an interest of twenty per cent. per annum, and that two notes were executed by said Fugate, in pursuance thereof, for two hundred and fifty dollars each, bearing interest on their face at the rate of ten per cent. per annum, and payable six months after date, with James Fugate and Wm. Armstrong as securities. Plea further avers that when said notes became due, to-wit: on the 4th day of June, 1837, said Reuben Fugate took up said note, and in lieu thereof, executed another note for five hundred dollars, with James Fugate and William Armstrong as securities, payable six months after date, to-wit: on 4th December, 1837, bearing ten per cent. interest on its face, and that the said usurious agreement was continued in relation to this second note to pay an additional ten per cent. interest. Plea further avers, that afterwards, on 4th December, 1837, said defendant took up the last mentioned note, and executed a new note, payable 25th day of December, 1838, bearing ten per cent. interest on its face, with James Fugate and A. Snell as securities, and that the usurious agreement was continued in relation to the payment of the additional ten per cent. interest. Defendants further aver that this last mentioned note, after it fell due, and on the 2nd day of March, 1839, was again taken up by defendant, and in lieu thereof, he executed a new promissory note for five hundred dollars, bearing ten per cent. from the 25th December, 1838, with William Young as security, which last mentioned note is the identical note sued on, and that the same agreement was corruptly made and continued in force for the payment of ten per cent. over and above the ten per cent. called for by said note. The plea avers generally, that all the notes were executed for the same consideration and in prosecution of said corrupt agreement; the plea further avers, that on the 25th December, 1838, defendant fully paid all the usurious interest at the rate of 20 per cent. per annum, to wit: the sum of $204 64, as interest and usury, from 4th December, 1836, to the 25th December, 1839. On this plea issue was taken, and the parties went to trial; verdict and judgment were for the plaintiff for the amount of his note, with interest as appeared on its face. From the bill of exceptions, it appears, that on the trial, after the parties had announced to the court that they were ready for trial, and the jury were being called into court, the defendant presented his petition and motion for a change of venue. The petition made out a case of prejudice in the people of the county against defendant, Fugate; the motion was overruled by the court. It seems, also, from the record, that previous to the trial, and in vacation, defendants filed their bill for a discovery, setting forth the transaction nearly similar to the facts averred in the plea; the bill was duly answered by plaintiff, but defendants excepted to the sufficiency of said answer. The answer denies the original loan of five hundred dollars, as charged in the bill, but admits the note for five hundred dollars, which was first given, was in lieu of a note for $250 formerly given by the Fugates, and another note made by James Fugate, which R. Fugate assumed. It admits usury in all or most of the transactions, and denies that there was usurious agreement in relation to this note sued upon. The defendant's exceptions to the sufficiency of this answer, were overruled by the court. The defendants declined reading the plaintiff's answer on the trial, but relied on other testimony: after this testimony was finished, the plaintiff then read his own answer in evidence, before the jury; this was objected to by the plaintiffs in error, and exceptions duly taken. The court, at the instance of plaintiff, instructed the jury as follows: The jury should find the issue on the plea of usury for the plaintiff, unless they believe from the evidence, that there is some contract, promise, or understanding between the plaintiff and the defendants, that more than 10 per cent. interest should be paid for the use of the money mentioned in the said note sued on. 2nd. That it is incumbent on the defendants in this cause to prove every material averment in their plea of usury, before the jury can find the issue for them on that plea. 3rd. The jury ought to find the issue on the plea of usury for the plaintiff unless the defendants prove substantially the contract of usury set out in their plea; and that, although they may believe from the...