Hawkins v. Sauby

• Decision Date: 18 January 1892
• Citation: 48 Minn. 69,50 N.W. 1015
• Parties: HAWKINS v SAUBY.
• Court: Minnesota Supreme Court

48 Minn. 69

50 N.W. 1015

HAWKINSvSAUBY.

Supreme Court of Minnesota.

Jan. 18, 1892.

(Syllabus by the Court.)

1. Although there is no direct evidence contradicting the testimony of a witness, yet a jury is not bound to accept it as true if it contains improbabilities and contradictions, which alone, or in connection with other circumstances in evidence, furnish reasonable grounds for concluding that it is false.

2. Evidence held sufficient to justify the jury in finding that the agent exacted usurious interest by the authority or with the knowledge and consent of his principal.

Appeal from district court, Grant county; BROWN, Judge.

Action by Helen T. Hawkins against Tobias O. Sauby to recover possession of personal property. Judgment for defendant. Plaintiff appeals. Affirmed. J. W. Reynolds, for appellant.

E. J. Scofield and E. J. Gunderson, for respondent.

MITCHELL, J.

This action was brought to recover possession of certain personal property under a chattel mortgage executed by defendant to one Russell, and by him assigned to plaintiff. The defense was that the note secured by the mortgage was usurious. It was admitted that the note in question was given for money loaned by Russell through his agent, one Colony. Russell was a resident of New Hampshire, and Colony of Ashby, in this state. The undisputed evidence was that Colony was, and for two or three years had been, the general agent of Russell to lend money in this state, with full power to renew, collect, and reinvest without consultation with or special instructions from his principal; and that in making the loan in question he exacted from defendant a “bonus” of (without being exact) $50, lending him in fact only $450, and taking from him a note for $500, bearing interest at 10 per cent. per annum. As these facts were undisputed, defendant's assignments of error in the admission of evidence are immaterial.

The case was tried and submitted to the jury upon the theory of the law that the act of Colony in exacting the bonus would not affect the validity of the securities in the hands of Russell or his assignee, unless he authorized, consented to, or ratified it. Of this the defendant had no ground for complaint. Upon the trial Colony and Russell testified that the bonus was not taken with Russell's knowledge or consent; that Russell never authorized Colony to lend money for any greater rate than 10 per cent.; and that Colony exacted the bonus entirely for his own benefit. There was no positive or direct testimony contradicting them, and the principal question in the case is whether the evidence justified the jury in finding that the note was usurious. The fact being established that Colony was Russell's general agent in such transactions, the presumption was that the exaction of the bonus was by his authorityor with his consent, and the burden was on the plaintiff to...